Author, Javed Razack, Advocate
There are several villages in the midst of agricultural lands and there are houses surrounded by other houses. The local inhabitants of these places have one common disadvantage – they do not have direct access to the road. To reach the public road they have to pass through someone else’s property.
There are several acres of sprawling agricultural lands for which water has to flow through adjoining lands. There are some remote areas where people still collect water from a distant water body, walking over a long stretch of land , which does not belong to them. The owners of such lands, on the other hand, cannot deny these trespassers.
The Easements Act of 1882 clearly says that people are privileged to use the land out of necessity and /it is the privilege of the people to use the land out of necessity, which the owners cannot deny.
The word Easement stands for the right to use another’s property. It is a right, which the owner of a particular land enjoys over an adjacent property, which he does not possess. It is the right over a property belonging to someone else and not to the person claiming easement.
The landowner who gets the benefit from the property which is not his own and over which he has a right is called dominant heritage or dominant tenement and the owner of such a land is called the dominant owner. Dominant because the owner has control over the use of that particular land which he does not possess.
Here the property of the actual landowner who cannot object to the other using his land is called servient heritage or servient tenement and the owner of such a land is called servient owner. Servient or subordinate because he has to abide by the requirements and convenience of the dominant owner. In fact, whether he likes it or not, it is a burden brought to bear on him by grant, by custom or by prescription.
X owns a piece of land. Y has the right of way over it. Here X is the servient owner and has the servient heritage. Y is the dominant owner and he has the dominant heritage.
In short, Servient Heritage means an inherited property over which the dominant owners have a right to use it to their advantages and Dominant Heritage means inheriting a right over another’s property without owning it.
The title to easement may be by grant, by custom or by prescription. When an easement is acquired by grant, the deed of easement may be separate or the grant may be included in a deed relating to the dominant heritage. For example, X sells his land to Y and by the same deed he may grant a right of way to Y for such land or for another land of his.
Grant is given by an agreement executed by the grantor in favour of the grantee for a consideration. The grant becomes effective when the grantee has the right to enter upon the grantor’s land.
Prescription means getting a right by continuous assertion of the right, which has been in use for a long period of time. According to the Indian Easements Act, for example, the inhabitants of a building enjoying the access and use of air and light as a right, continuously for over 20 years ,have the right to enjoy them without any condition or restriction.
Easement by virtue of custom is a legal right acquired by the operation of law through continuous use of a land over a long period of time.
Therefore, the right of way continues to exist by grant, prescription or by virtue of custom.
The dominant owner has the right over the property of the servient or subordinate owner. It is a privilege enjoyed by the dominant owner over the property, which he does not own. The servient owner cannot enjoy his own property. He cannot do anything on his own land and he is bound to suffer because of the advantageous position of the dominant owner. If at all the servient owner does something on dominance own property, the dominant owner has the right to prevent it.
Thus in an easement, there must be a dominant owner and a servient owner.It must be to the advantage of the dominant owner that may be permanent or temporary, or for a limited period of time or seasonal or for a specified event or out of necessity. Here, the owners must be two different persons and capable of forming/ writing the subject matter of a grant.
There are several types of easement. Right of way, right to air and light, riparian rights, right to build, right to uninterrupted flow of water, are a few.
Easements, which are the subject matters of agreement between the parties are : right of way and right to air and light. Some easements are acquired by grant and others by prescription and custom. We are dealing with easements, which form subject matters of grant.
Creation of an easement does not mean transfer of property. In the same manner, surrendering an easement right does not imply transfer of property. Easement can be made, altered and released. Easement right cannot be created or modified orally. It must be in a written form. However, easements by prescription and custom need not be in writing.
Right of Way
Private right to certain individuals by grant, rights to certain classes of people like inhabitants of a village by custom, and common rights dedicated to the benefit of all, are three classes of rights of way.
The private right of way is the means of access to and from a dominant heritage by way of grant. If a seller sells one of his adjoining properties to the purchaser, the seller reserves the right of way for passage running across the property sold. In this case the seller reserves the right of way in the sale , a deed in favour of the purchaser.
If the purchaser has no right of way to access the road, the seller will grant to the purchaser a right of way over his property. Here the seller of the plot has to execute a separate deed in favour of the purchaser granting a right of way. A right of way for the benefit of the public at large is normally acquired by prescription.
A private right of way can be either permanent or periodic or for a particular time during the day only, or seasonal or for a limited time, for to and fro movement of human beings, cattle and light vehicles.
The deed of grant must clearly mention the purpose for which easement is granted. By the deed of grant the subservient owner gives full and free right to the dominant owner and his successors a passage wide enough for movement of people and vehicles in the dominant owner’s property to the public road against a price consideration. To make matters very clear a map with the properties and the passage marked in different colours must be annexed to the document of grant.
The dominant and servient owners have certain rights and obligations to maintain and preserve the easement. While exercising his right over the property of the servient heritage, the dominant owner has responsibilities to preserve the easement. His acts and deeds shall not put the servient owner into inconvenience. Being the actual user he shall rectify the damages if any caused by his acts at his own expense.
The servient owner is not obliged to do anything to the advantage of the dominant heritage. He has no liability whatsoever to construct a way for the use of the dominant owner or to carry out repairs in case of any damage to the passageway. As the holder of the property he is free to use the servient heritage in any manner he likes, but his acts shall not dilute the right of the dominant owner.
Right of Air and Light
Easements of air and light arise only in the thickly populated cities and towns. Earlier buildings were constructed close by often ignoring the conveniences of the nearby inhabitants. Virtually no space was left in between the buildings hindering airflow and natural light to the smaller houses. The inhabitants of houses who were getting fresh air and natural light suddenly found these were denied to them because of a multi-storied building nearby.
Haphazard constructions are no more a rule of modern architecture. Presently, buildings are constructed in a well-planned manner. Leaving minimum set backs as prescribed between two buildings for free flow of air and natural light is now mandatory.
Therefore, anyone who comes into possession of a servient heritage has to carry the burden of easement for all times to come for the benefit and enjoyment of the person who comes into possession of the dominant heritage. This sort of ‘master-servant’ relationship cannot be severed as long as such properties co-exist.