MY right in YOUR property?: wht is easementary right

MY right on YOUR property? What is easementary right?

I might have an easementary right over your property, that is I can stop you from using your land as per your wish . I got you there right?, chill easementary right is not the blessing for goons , it is a right that can be acquired by the owner of an immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same. One of the two or more co- owners of the immovable property can also, as such with or without the consent of other or others , acquire an easement over some other property for the beneficial enjoyment of the jointly owned property.

Don’t worry; you might also have easementary rights over someone else’s property. So, let’s understand what easementary rights are, how they can be acquired, and how they can be nullified.

1. Easementary Right:

As defined under The Indian Easements Act 1882, Section 4: “An easement is a right which the owner or occupier of certain land possesses, as such, for the 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.” This right exists against immovable properties as defined under the Transfer of Property Act 1882.

1.1 Some examples would help you understand what easementary right is:

Imagine you live on a dead-end street. To get to the main road, you have to drive all the way around the block. Your neighbor has a driveway that connects directly to the main road. They agree to let you use their driveway as a shortcut. This is an access easement, giving you the right to use your neighbor's driveway to reach the main road.

Or, you have a beautiful view of the mountains from your backyard. Your neighbor wants to build a tall fence that would block your view. You have a view easement, giving you the right to keep your view unobstructed. This means your neighbor can't build anything that blocks your view of the mountains.

An owner has the right to alienate his property and do whatever he likes with it, but such rights must not interfere with the beneficial enjoyment of another’s property. This right of another person is his easementary right.

1.2 Requirements of Easement:

- There needs to be an owner or occupier of certain land. The right can be claimed by a person who is not the owner but is only the occupier of the property.

- The right must be vested in the owner/occupier.

- The right must be for the beneficial use of his own land. 1

- The land on which the owner/occupier is exercising his right must not be his own.

There must be two immovable properties: the dominant heritage and the servient heritage. Easement is a right in rem. The right of easement can't be transferred apart from the dominant heritage (Section 6 of the Transfer of Property Act).

1.3 How Easementary Right is Acquired:

- By Grant: When the servient owner expressly, in writing or orally, gives permission to the dominant owner.

- By Necessity: It arises when one property is severed into two or more and is situated such that one cannot be enjoyed without exercising a particular privilege on or upon the other (Sections 13(a), (b), (c) of the Indian Easements Act). The necessity must be absolute, not merely for reasonable and convenient enjoyment.2

- Quasi Necessity: Similar to easement by necessity, but there is no absolute necessity; the right is available if the easement is apparent, continuous, and necessary for enjoying the separated property as before separation. Examples include easement of light, air, water for irrigation, and drainage.

- By Lost Grant: This involves the use of servient heritage by a dominant owner for immemorial antiquity. The origin of the right is unknown.

- By Custom: The easementary right acquired due to custom. For example, villagers grazing cattle on a grassland4 or the right of Muslims in a village to bury the dead on someone else's land.5

- By Transfer of Dominant Heritage:When the dominant heritage is transferred with the bag of interest, the easementary right is also transferred unless stated otherwise.

- By Legislation:Easements acquired by operation of law, such as rights granted under the Land Acquisition Act.

1.4 20 Years of Use of Someone's Property Gives You Right on Their Property? (Easement by Prescription):

If one continuously uses another’s property for the beneficial enjoyment of their own property for 20 years (for personal property) or 30 years (for public property) without interruption, peacefully, and openly, the right of easement transforms into an easement of prescription. Essentials required are:

- The use has been enjoyed

- As an easement

- For twenty years (for personal property) and thirty years (for public property)

- Without interruption by the person claiming title

- Openly

- Peacefully

- As of right

The court has laid down all seven essentials for pleading easement by prescription 3.Waqf boards can also acquire easement rights if they have been using a public property for thirty years, fulfilling all requirements.

The principle behind the prescription doctrine is to recognize rights and titles that have been long enjoyed, even if they were wrong at the time of their establishment, to avoid unnecessary hardship.

Rights that can't be acquired by prescription:

- Rights that lead to the total destruction of the property.

- The right of free passage of light or air over open space on the ground.

- Surface water that is not permanently collected in a pool, tank, or otherwise.

- Underground water that is not passing through a defined channel.

1.5 How Easementary Right Gets Dissolved:

- Extinction by Dissolution of Servient Owner: Section 37 of the Indian Easements Act.

- Extinction by Release: When the dominant owner releases his right expressly or impliedly to the servient owner (Section 38 IEA).

- Extinction by Revocation:When the servient owner, exercising reserved power, revokes the easement (Section 39 IEA).

- Extinction on Expiry of Prescribed Period or Happening of a Specified Act:(Section 40 IEA).

- Extinction on Termination of Necessity:(Section 42 IEA).

- Extinction by Destruction of Either Heritage.

- Extinction by Unity of Ownership.

- Extinction of Accessory Rights.1

- Extinction or Permanent Alteration of Servient Heritage by Superior Force.

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1.6 Surprise Element:

We’ve learned how a third person can have rights over your property, but here's an interesting twist: the right of pre-emption. This right, also known as the right of first offer, gives someone the first opportunity to acquire certain property or assets before they are offered to others. It creates a priority when selling your land or making an offer. This right is not inherently negative; understanding its true existence involves studying its history in various communities.