This article deals with the types of easements, the manner in which they are prescribed, and the manner in which they are extinguished. It also explains the role of easements in conveyancing.
Easements are referred to rights granted to one landowner to the use the land of another in some way or to prevent it from being used in a certain way. The right of way, or the right to cross a property, and the right of light, i.e. the right to have light passed into your land from a land of another without that light being blocked. To claim an easement there should exist certain conditions including:
- presence of a dominant and a servient land, i.e. a piece of land that claims the easement and a piece of land that has the burden
- the easement should be favourable to the dominant land
- the dominant and servient pieces of land should not be both occupied and owned by the same person, and
- since such a right is granted by means of a deed, it should be a right that is within the nature of rights capable of an easement and must be sufficiently definite.
Creation of Easements:
Easements can be created by three ways:
Express Grant of Reservation:
An easement is said to be created expressly when the seller decides to sell part of his property. For instance, if a person who owns a piece of land fronting a road decides to sell the rear end of his property, he need not grant the buyer, a right of way to the road. Similarly, if he decides to part with the front portion and keeps the rear portion for himself, such a right of way is not required to be reserved.
For an easement to take legal effect, it is important that it is created by way of a deed and granted for a period that is equivalent to an estate in fee simple or for a term of years absolute. In circumstances where the land is unregistered, a legal easement is automatically binding, but in circumstances where the land is registered, the legal easement should be registered on the charges register of the servient tenement. And in instances where both the dominant and servient title are registered the legal easement (except those that are already in existence as on 13th October 2003) should be registered on both the titles.
Implied Grant or Reservation:
When a seller sells part of a land, a legal easement is said to have been impliedly ‘granted’ to the buyer or ‘reserved’ in favour of the land that is retained for the owner. It is to be noted that rules related to the implied grant of easements is far more generously interpreted than rules related to implied reservation. Such an easement is said to exist even though they are not expressly created. However, modern day practices ensure that such easements are expressly provided to allow a greater certainty and also clear important issues like maintenance of right of way etc.
On a land with an unregistered title, the easement is created by implied grant or impliedly reserved (as the case may be) and need not be registered. In the case of lands with registered titles, implied grants or reservations take an overriding interest provided certain conditions are satisfied.
Prescription:
When a person continuously enjoys an easement for a long period of time, such a right is presumed to have been granted. While a claim for this can be made even under the common law rule, it can also be made under the Prescription Act 1832 when the period of uninterrupted usage is more than 20 years. In instances where the land has an unregistered title, the easement so created need not be registered and is automatically binding. And in instances where land is registered, such an easement is said to have an overriding effect, provided certain conditions are fulfilled.
Extinguishments of Easements:
An easement can be extinguished in the following three ways:
- Upon merging of ownership between the dominant and servient estate. And in such a case, the easement cannot be automatically be revoked when the estate is subsequently split up.
- Upon express release of the easement by deed by the dominant owner.
- Through implied release; i.e. when the dominant owner has not used his right for a period of more than 20 years.
Easement and Public Rights of Way:
The surface of land over which common public exercise their right of way is called as highway. Such a public right of way is not created by way of easement, but is a right that can be exercised by anyone. Such a right to cross another person’s land is given by way of general law. Such a public right of way can either be dedicated by the owner of the land expressly of impliedly, or through a statute like the Highways Act 1980.
Easement and Conveyancing:
Easements are particularly important in the context of conveyancing transactions. Before buying a property a buyer would have to ensure that the land he is purchasing has all the benefit of easements over adjoining land so that the land to be acquired can be fully enjoyed. For instance, a buyer has to ensure that if his land can be accessed through another land, then there exists a right of way over that land. Simultaneously, a buyer should also check for easements that are likely to affect the land. For instance, if a land is being purchased for development purposes, an existence of right of drainage or other easements could adversely affect the development.
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