Have you heard of easement rights in India? If not, then picture this to have a clear understanding. You live in a house which is located in such a way that there are houses built on North-West-South, and at the door to home opens on the East, where there is an open land belonging to a relative. Your ancestors have been living in the same house for years, but one fine day, the relative begins construction in such a way that you may lose the scope for entry to your house.
What do you do in such a scenario? Because ownership of that land cannot be denied. So, should it result in abandoning your house and moving to another place? Or buy an aircraft for entry into the house from air pathways? Well, that’s where your easementary rights come into play, as explained hereunder.
Easement Rights Meaning
When a person owns or occupies a certain land, has a beneficial enjoyment of another land not belonging to him/her, those are called easementary rights. The said enjoyment may be doing something, or preventing others from doing something, as in doing a positive action or preventing an action.
In other words, easement rights in India can be understood as something which has become part of habit over the years, and now nobody is allowed to make changes. The habit relates to the land or anything attached to the land, begotten with passing years. It may be noted that there is no right to ownership but enjoyment only, as defined in the law. The Indian Easement Act, 1882 lays about easementary rights in India. The easement could pertain to the right to use a pathway, sources of water or air, etc.
Definition of Easementary Rights
Section 4 of the Easement Act defines easement as “a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own.” Thus, easement is all about certain beneficial enjoyment rights over the land or things attached to the land of another.
It may be noted that the words “beneficial enjoyment” may include the following:
- Possible convenience
- Remote advantage
- Mere amenity
Types of Easement Rights in India
Section 5 of the Easement Act, 1882 lays about four types of easementary rights, as discussed below:
- Continuous Easements
As defined, “a continuous easement is one whose enjoyment is, or may be, continual without the act of man”. It means that it is a right that can be enjoyed without human intervention. The easementary right is continuous in nature, and the benefit can be exercised without any active effort. Section 47 states about extinguishment of continuous easement on ceasing to enjoy the same in totality, for an unbroken period of 20 years.
As described in Section 13 of Easement Act pertaining to easements of necessity and quasi easements, when it is apparent and continuous easement and the property is subjected to transfer or bequest, the transferor or legal representative shall be entitled to such easement, unless parties have a different intention. Even in case of partition of joint property, when the share of one is necessary for enjoying the share of another as enjoyed before partition, parties shall be entitled to such easement unless there is a different intention.
- Discontinuous Easements
Definition under Section 5 lays that “a discontinuous easement is one that needs the act of man for its enjoyment.” As described, active human intervention or efforts are required for enjoyment of such rights. Section 47 states about discontinuous easement being extinguished when it has not been enjoyed for a like period. The said period reckons from the day it was lastly enjoyed by any person. However, the same may not extinguish for the next 20 years, if the dominant owner declares under the Indian Registration Act reflecting his intention to retain such easement.
- Apparent Easements
The word “apparent” literally means clearly visible or obvious. Section 5 of Easement Act lays that “An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him”. Hence, when the easement is clearly visible, speaking for itself, it may be called an apparent easement.
As for continuous, for apparent easement too, Section 47 of the Act extends the easementary rights in case of transfer, bequest or partition of joint property, unless a different international duly expressed or implied.
- Non-Apparent Easements
As compared to the apparent easement, a non-apparent easement is one that has no such sign, as per Section 5 of Easement Act. So if a person claims that another person cannot build anything on his own land, this may be some sort of non-apparent easement, but the said person claiming so has to prove since there is nothing apparently suggesting for any such easementary right.
Easement Rights Examples
Given below are some of the examples of right of easement:
- Right of Way – The right to pass through someone else’s land.
- Right to Light – The right to receive natural light through defined openings.
- Right to Air – The right to free flow of air to a building.
- Right to Water – The right to draw water from a well or stream on another’s land.
- Right of Support – The right to have land or structures supported by adjacent property.
Easement Rights Over Government Property
Section 15 of the Easement Act lays about acquisition by prescription. It extends absolute easement rights to access, use of light, air, support or any other easement, which are enjoyed without interruption for a period of 20 years. The provision further clarifies that in case the property belongs to the government, the period of 20 years shall be read as 30 years. Thus, uninterrupted enjoyment of 30 years or more is required for easement rights in India against the government property.
Extinguishment of Easementary Rights
Now that it is clear what easement rights in India mean, there is another aspect to understand, as to when it extinguishes. Given below are the scenarios when easement rights may come to an end:
- Release: When the one enjoying the right to easement gives up his/her right and releases the other person.
- Non-Use: When parties cease to enjoy easementary rights over the property of another.
- Destruction: If the dominant owner’s property has been destroyed for any reason, and there is no scope for enjoying the easement rights, it ceases then and there.
- Single Ownership: If the neighbour over whose property easement rights were being enjoyed, has brought your property for which such rights pertained to, then that owner becomes the single owner and the scope for easement right extinguishes.
FAQs Around Right to Easement
- What are my rights for an easement on my property?
Answer: For exercising easement rights, at least two parties should be involved. If one person owns the two properties where the scope of easement may persist, there is no easement as per the Act. A person enjoys the easement rights over the property owned by another.
- What are Prescriptive Easement Rights?
Answer: Similar to adverse possession, prescriptive easement grants the right to use someone else’s property for a specific purpose, even without explicit permission, after continuous and open use for a statutory period. As against adverse possession, there is no ownership right, but only a specific use of the said property.
- What are ingress and egress easement rights?
Answer: Ingress means entry, and egress means exit. Thus, ingress and egress easementary rights in India pertain to right to path, for entering and exiting a particular area/property.
