What is an easement right on the property?November 23, 2022 . Fundamentals Of Home Buying . 10 min read
The Indian Easements Act of 1882 applies to the territories of Madras and Coorg. Easement property right empowers a landowner to compel the owner of another land to allow something to be done or to refrain it from happening based on the fact that it would benefit the dominant tenement.
This Act takes the non-possessory rights of property into consideration. Thus, it allows one to use certain facilities without emphasising much on the title and ownership. Right to air, light, and right of way are some basic examples of easement property rights.
It can be viewed as a privilege enjoyed by the dominant landowner over the other who is obliged to abstain from or compelled to do something. The following are certain essential requirements to possess the easement property right-
- Dominant heritage and dominant owner- The landowner that enjoys certain rights over the property that is not owned by them legally is known as the dominant owner. Hence, the land in this respect is referred to as the dominant tenement or heritage.
- Servient Heritage and servient owner- The landowner that cannot restrict the dominant owner from using their land is known as the servient heritage or servient tenement. The actual landowner in this case is referred to as the servient owner.
Section 4 of the Indian Easement Act, 1982, defines “easement” as the right which allows the usage of another person’s land for a designated purpose.
Types of the easement property rights-
There are four types of easement property rights: continuous or discontinuous, apparent or non-apparent.
● Continuous easement- A continuous easement can be regarded as that type of privilege in terms of property rights which by nature is continual with or without the act of a person. Allowing cattle to continuously graze on the existing pasture is an example of continuous easement.
● Discontinuous easement- This type of easement requires a conscious act on the part of a person to manifest or yield benefits for the party concerned. The construction of sanitary facilities can be regarded as an example of discontinuous easement.
● Apparent Easement- The presence of this type of easement right is shown with the help of some sign that is permanent. If any interested person enquires about the permanent sign, its components will become clear.
● Non-apparent Easement- A non-apparent easement does not come with any particular sign.
Description and analysis of the different types of easement property rights
As mentioned earlier, there are three main types of easement property rights: Right of Way, Right of Light, and Right of Air.
Right of way-
There are two main categories here:
● Public rights– They aim to benefit the ordinary people. Common examples of it may include- highways, bypass roads, flyovers, etc. It has an element of service for the greater good of the public in it.
● Private rights- These rights lie in the hands of specific individuals rather than owners of dominant tenements.
Right of Light and Air-
This right aims to prevent the owner of an adjoining area from constructing a building or placing it on his land to ensure that the light and air received by the dominant tenement are not obstructed.
There are various ways to acquire the right to light, and they include the following-
- A grant or covenant that, by nature, may be implied or expressed.
- The Indian Easement Act provides necessities that tenants may enjoy without interruption for twenty years, beginning from the day of establishment of the property or their tenancy period.
Remedies present in terms of the easement property right-
The court does not interfere in easement property rights if the obstruction of light and air is trivial. However, if the tenement experiences problems that carry an element of severity, the court would very well interfere in the redressal of grievances.
It must be understood here that the material aspect of the entire scenario is given a lot of importance. A case shall be heard in the court if a construction is diminishing the value of the dominant edifice or is taking away from the comfort that the tenant earlier experienced. If the tenant can continue with their business like before, then it does not stand much chance of being dealt with in court.
In India, the courts may take up a case only if financial compensation does not provide adequate relief. However, the court will grant an injunction if a man with the right to light and air faces difficulty due to the building or structure constructed by their neighbour.
However, the court would take up the matter only if a severe comfort loss occurred. The court would not entertain cases with a mere loss of fanciful vision. It must also be noted that if the party concerned moves the court after the completion of the building, a mandatory injunction may not necessarily be granted.
Easement property right differs from a lease as it does not entitle a person with the right of possession. It only provides certain specific reliefs for the violation of certain fundamental rights. Cases regarding the right to way, light, and air are heard only if there is a violation of rights on a greater scale, such that the party concerned is facing great difficulties that they did not face before.
In the case of Hero Vinoth Vs Seshammal, it was ruled that a case regarding the violation of property rights would only take place if necessary and if the problem could not be solved with the help of a grant.
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