Easement / Servitus /

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. Section 4 of the Indian Easements Act, 1882 defines easements with reference to two parcels of land: the 'dominant tenement' (the land for whose benefit the easement exists) and the 'servient tenement' (the land over which the easement is exercised). An easement is inseparable from the dominant tenement — it passes automatically with a transfer of the dominant land and cannot be held independently.

Types of easements: (1) Positive easements — the right to do something on the servient land: right of way (to pass over another's land), right to draw water from a well, right to lay pipes; (2) Negative easements — the right to prevent the servient owner from doing something: right to light (preventing the neighbour from building in a way that blocks light), right of air (preventing obstruction of natural air flow). Under Section 5 IEA, easements may be: (a) continuous — the enjoyment can continue without an act of the dominant owner (right of light); and (b) discontinuous — the enjoyment requires an act of the dominant owner (right of way).

Creation of easements: (1) By express grant — the servient owner grants an easement by a written deed; (2) By implied grant — an easement necessary for the enjoyment of land sold or transferred is implied in the transfer (Section 13 IEA: an easement of necessity); (3) By prescription — long uninterrupted user for 20 years without permission (Section 15 IEA); and (4) By custom — a right recognised as part of local custom (Section 18 IEA). Extinction of easements: an easement is extinguished when the dominant and servient tenements come into one ownership (merger), when the dominant owner renounces the easement, or when the easement is not enjoyed for 20 years (Section 47 IEA).

For advocates, easement disputes commonly arise in: (1) right of way disputes — particularly in urban areas where older properties have historical access rights over neighbouring land; (2) right of light disputes — whether a new building blocks the prescriptive right to light of an existing building (injunction is the usual remedy); (3) easement by necessity — implied in conveyances where the transferred land is landlocked; and (4) extinguishment of easement — where the servient owner seeks to establish that the easement has lapsed through non-user.