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Easementary rights
Easementary rights
Easementary rights
Easementary rights
Easementary rights
Easementary rights
Easementary rights
Easementary rights
Easementary rights
Easementary rights
Easementary rights
Easementary rights
Easementary rights
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Easementary rights

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  • 1. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com EASEMENTARY RIGHTS FILMA VARGHESE TRADE MARK DEPARTMENT
  • 2. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com INTRODUCTION An easement is a 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.
  • 3. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com DEFINITION OF EASEMENT (Section 4 of the Indian Easement Act, 1882) An easement is 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. There are several types of easements. Right of way, right to air and light, riparian rights, right to build, and right to uninterrupted flow of water, are a few.
  • 4. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com “Profits-a-prendre” and Easement • Profits-a-prendre – A Profits-a-prendre is a right to remove and appropriate any part of the soil or anything growing upon or attached to the soil for the purpose of profit, which belongs to another. • The definition of “Easement” is wide enough to include Profits-a-prendre too. • Easements in India are capable of being exercised not only over actual land itself but over things permanently attached to the land, such as houses or buildings of any kind or over anything, growing on or attached to or subsisting upon, land, such as woods, tanks and rivers. • While an easement can never import an interest in land, a Profits-a- prendre which gives a right to take away a portion of the produce of another soil may be said to that extend to be an interest in land or possessory right. • Certain example of Profits-a-prendre – Right to harvest rice, a right to catch fish, a right to take the timber, a right to take grave, right to graze the cattle, sheep etc.
  • 5. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com DOMINANT AND A SERVIENT TENEMENT A landowner's benefit from a property which is not his own and over which he has a right is called a 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. A case where another person has a right over a part of the property of a landowner is called 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.
  • 6. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com CHARACTERISTICS OF EASEMENT RIGHTS 1. There must be a dominant and a servient tenement 2. The easement must accommodate the dominant tenement 3. The right of the easement must be possessed for the beneficial enjoyment of the dominant tenement. 4. Dominant and servient owners must be different persons. 5. The right should entitle the dominant owner to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of servient tenement and 6. That something must be of certain or well defined character and be capable of forming the subject matter of grant.
  • 7. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com HOW ARE EASEMENTS CREATED? IMPOSITION, ACQUISITION & TRANSFER OF EASEMENTS oby grant oby prescription oby custom oBy necessity
  • 8. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com Express Easements: Most easements are created by creating a conveyance in a legal document that is recorded with the recorder of deeds where the property is located, commonly called an express grant of an easement. An easement can be acquired by grant. The deed 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 the land through another land of his. However, there are exceptions to the written easement, such as an easement of necessity, implied or visible easement and easement by prescriptive use. Implied Easements: Implied easements are more complex and are supported by the courts based on the use of a property and the intention of the original parties, who can be private or public/government entities. Implied easements are not recorded or explicitly stated, but reflect the practices and customs of use for a property. Courts typically refer to the intent of the parties, as well as prior use, to determine the existence of an implied easement. CONTINUED… .
  • 9. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com CONTINUED…. Easement by Prescription: • 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, 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 them without any condition or restriction. Easement by custom: • Easement by virtue of custom is a legal right acquired by the power of law through continuous use of a land over a long period of time.
  • 10. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com CONTINUED…. Easement by necessity: Necessity alone is an insufficient claim to create any easement. To obtain this generally the party who claims the easement files a lawsuit and get a court order to determine the existence of an easement by necessity. In India, easement of necessity could be claimed only in such cases where transfer or partition necessitates such claim. This method of creating an easement, being an active creation by a court of an otherwise non-existent right, will be automatically extinguished upon termination of the necessity. Easement by prior use: An easement may also be created by prior use. Easements by prior use are based on the idea that land owners can intend to create an easement, but forget to include it in the deed.
  • 11. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com CONTINUED…. Easement by Estoppel: When a property owner misrepresents the existence of an easement while selling a property and does not include an express easement in the deed to the buyer, the court may step in and create an easement. Easements by estoppel generally look to any promises not made in writing, any money spent by the benefiting party in reliance on the representations of the burdened party. If the court finds that the buyer acted in good faith and relied on the seller's promises, the court will create an easement by Estoppel. Affirmative and Negative Easements: An affirmative easement is the right to use another’s property for a specific purpose, while a negative easement is the right to prevent another from performing an otherwise lawful activity on their property. Private and Public Easements: A private easement is held by private individuals or entities. A public easement grants an easement for a public use, for example, customary rights are public rights annexed to the place in general.
  • 12. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com PRECECENTS • Creation of an easement does not mean transfer of property. In the same manner, surrendering an easement right does not imply transfer of property. An easement can be made, altered, and released. Easement rights cannot be created or modified orally. • It must be in a written form. However, easements by prescription and custom need not be in writing. • A deed of grant must clearly mention the purpose of which easement is granted. By the deed of grant the subservient owner give full and free right to the dominant owner and his successors a passage wide enough for movement of people and vehicles between the dominant owner's premises and the public road. • 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 should not put the servient owner into inconveniences. Being the actual user he should rectify the damages if any caused by his acts at this own expense.
  • 13. CHENNAI 3rd Floor, ‘Creative Enclave’, 148-150, Luz Church Road, Mylapore, Chennai - 600 004. Tel: +91 - 44 - 2498 4821 BANGALORE Suite 920, Level 9, Raheja Towers, 26-27, M G Road, Bangalore - 560 001. Tel: +91 - 80 - 6546 2400 COIMBATORE BB1, Park Avenue, # 48, Race Course Road, Coimbatore - 641018. Tel: +91 - 422 – 6552921 EMAIL info@altacit.com WEBSITE www.altacit.com THANK YOU

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