HIMACHAL PRADESH NATIONAL

LAW UNIVERSITY, SHIMLA

ASSIGNMENT 2

TRANSFER OF PROPERTY
TOPIC- UNDERSTANDING HOW TO USE A LEASE, LICENSE AND EASEMENT.

Submitted by:                                                          Submitted to:

Madhusudan Joshi
(1120181908)                                        Ms. Navditya Tanwar
B.B.A. LL.B.                                                           (Assistant professor of law)
5TH SEMESTER

TABLE OF CONTENTS

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  INTRODUCTION
 LEASE
 UNDERSTANDING HOW TO USE A LEASE.
 LICENSE
 UNDERSTANDING HOW TO USE A LICENSE.
 EASEMENT
 UNDERSTANDING HOW TO Use AN EASEMENT.
 CONCLUSION
 REFERENCES

INTRODUCTION

Due of financial transfer of property is not possible for every individual i.e. each individual
cannot afford to purchase a property in times of need. permanent transfer is a extravagance for
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some people, but as a resort temporary transfer is something that has given every citizen the
right of enjoying any property. And to fulfill the needs of citizens there are certain instruments of
laws that enable citizens to enjoy the right to use property. There are certain modes of
transferring propertytemporarily that enables every citizen the right of enjoying any property.
These modes are Lease, license and easement.

Lease is a transfer of an interest in the property for a certain period of time without transferring
the ownership of that particular property. In an agreement of lease, right of possession is
transferred instead of the right of ownership. The person who is transferring the property i.e. the
Transferor here is known as the lessor and the transferee who is the one enjoying the property for
a period is called lessee. Lease is defined under the Transfer of Property Act, 1882 and it is given
from Sections 105 to 117.

License is a type of contract in which owner of a property lets an individual or an entity (like a
company, government, or a school) to use real property for a specific purpose. Licenses can be
used for other types of property as well – such as a software license or a license to be on
television. Usually, licenses are personal to the licensee (the individual or entity) and if the
licensee attempts to transfer it, licenses usually cease to exist. They're typically revocable and
may be exclusive or non-exclusive.

Easements are a little complicated. An easement, like the license, is the owner's permission to
use or to prevent the use of the owner's real property. But, the easement holder receive an actual
interest in the real propertylike a lease or ownership of the property. There are two kinds of
easements namely appurtenant which relates to the benefiting and transferable with a specific
parcel of real property and in gross personal to the easement holder. Easements can (usually) be
transferred and are generally permanent and non-exclusive. To make it clear, let’s see some
example of easements:

 Giving permission to your neighbor to use a part of your land as a path to enavble him to
go to his /her property.
 Giving a right to the sewer company to come on and run a sewer line to your house and
maintain it forever.

LEASE

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In order to understand the usage of lease lets first understand the meaning of lease.

Meaning-

Lease is defined under Section 105 of transfer of property act, 1882. transfer of right to enjoy
property for a certain period of time, or which is made in perpetuity, or in consideration of a
price paid or promised to be paid is known as Lease.

A lease of an immovable property can be defined as the transfer of right to enjoy property made
for a certain time, express or implied, or which is made in perpetuity, or in consideration of a
price paid or promised to be paid, to the transferor by the transferee, who accepts the transfer on
such particular terms.1

The person who is transferring the property i.e. the Transferor here is known as the lessor and the
transferee i.e. the one enjoying the property for a period is called lessee, the price is called as the
premium and the money, share, service or other thing to be rendered is called as the rent.

Now, let’s understand some of the main essentials of lease.

Essentials Elements Of Lease Of Property

 The parties (the lessor and the lessee):

In lease at all times there is a requirement of two parties; the parties are known as the
lessor and the lessee. Lease is built on an agreement made by two parties who are
competent to contract. A lessee can be a legal person that is, a company or a registered
firm etc. If a lease deed is executed by one of the partners of a firm on behalf of the firm,
the lessee is the firm not the partner. In Raunak Ram V. Pishori Singh2, the honorable
Supreme Court held that, after the retirement of that particular partner the lease will
continue to exist and there is no renting by partner in favor of the firm. The firm will
continue to be the lessee.

 The Demise:
The Right to enjoy Immovable property: Lease is the transfer of limited estate. This
limited estate which is ‘right of enjoyment’ of property, is known as the demise.
Therefore, in lease, the demise is the subject matter of transfer. In
GirdhariSingh.V.MeghLalPandey3, the court said that the essential characteristic of lease

1
Dr RK Sinha, The Transfer of Property Act (12 edn, Central Law Agency 2011) 408
2
AIR 1990 SC 1892
3
(1918) 45 Cal 87

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 is that the property is occupied and the corpus of which does not, by reason of the user,
disappear.

 The Duration of Lease:

The period for which the right to use the property is transferred is called the term of the
lease. The term may be any period of time, shorter or longer, or even for perpetuity, but it
has to be mentioned in the deed. In Chapsibhai.V.Puroshottam4, the honorable Supreme
Court held that, a lease is permanent lease as the rights of the lessee or tenant are
heritable; such leases are not intended to be only for the life time of the lesee.

 Premium or Rent:
Consideration in lease may be premium or rent. The consideration paid at one time is
called as the premium. But the consideration paid periodically is known as the rent.

Understanding how to use a lease

The lease guarantees the tenant or lessee to use an asset and guarantees the lessor or the property
owner or landlord, regular payments for a specified period in exchange.

UNDERSTANDING How is a lease executed-

Section 107 states about lease EXECUTION. This section covers three aspects:

 When there is a lease of Immovable property for a term of one year or more then This can
only be made by a registered deed.

 All other types of leases of Immovable property can be either made by a registered deed
or an oral agreement or settlement along with the transfer of possession of that property.

 When the lease is of several properties that require multiple deeds, it will be made by
both the parties of the lease.

In the case of Punjab National Bank v. Ganga NarainKapur 5 the honorable Court held that if the
lease is done through an oral agreement, then the provisions of Section 106 will apply.

Usage of Lease.

In order to understand how to use a lease lets understand what purposes it serves or what the use
of a lease is.

4
AIR 1971 SC 1878
5
AIR 1994 All 221.

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A Tenant can use the leased premises for manufacturing purposes, consistent with its existing
use of the premises, and in other lawful purpose.

The Leased Premises are to be used for agricultural purposes as described in the leased
agreement. Precisely, Lessee shall use the Leased Premises to plant, grow, cultivate, and harvest
trees, tree crops, flowers, vegetables, seeds, and woodland herb species.

LICENSE

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Definition of License

License is a personal right given to a person by the Indian Easement Act to do something upon
immovable property of the grantor and does not amount to the creation of interest in the property
itself.6 License creates no duties and obligations upon the persons making the grant and is, as a
result, revocable except in certain circumstances expressly provided for in the Indian Easements
act, 1882 itself. The license, when granted, has no other effect to confer liberty upon the licensee
to go upon the land which would otherwise be lawful.

Essential features of license as under:

1. A license is not connected with the ownership of a property but it only creates a personal
right or obligation.

2. License creates only a right and not an interest in the immovable property to do
something, under the authority of the grantor of the license.

3. A license cannot be transferred or allocated.

4. License is only a permissive right arising only by permission, express or implied, and not
by adverse exercise or in any other way.7

5. It only legalize certain acts,

which would otherwise be unlawful and does not confer any interest in the property itself
in or upon or over which such act is allowed to be done.

6. A licensee cannot sue outsiders in his own name.

Granting Of License

The provisionsthat relates to granting of license are the same as those governing the easements.
The provisions relating to license in India are Sections 53 and 54 of the Indian Easements Act,
1882.

Section 53 of The Indian Easements act, 1882, provides that a license may be granted by anyone
in the circumstances to the extent in which he may transfer his interests in the property affected
by the license. In other words, one cannot grant a license and one cannot get a license if the
licensor does not possess a sufficient lawful interest in the property.

Section 54 of The Indian Easements act, 1882, provides that the grant of a license can be express
or implied from the conduct of the grantor, and an agreement which reasons to create an

6
Mini Peter Philips v. Dina J. S. Fanibanda, 2008 (1) AIR Bom. R. 475
7
Section 62, Indian Easements Act

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easement, but is incompetent for that purpose, may function to create a license. This definition is
very important as the Owners of properties should take cognizance that their behavior may create
a license, even without a formal license agreement.

License is, thus, a grant of a right to do something upon an immovable without creating interest
in that property. It is thus, distinguishable from a similar grant such as a lease or an easement.
Both of these grants (lease and easement) create an interest in the property. Whereas License is
only a permission to do something on an immovable property like occupation or using it for
some other purpose.

Power to grant a license

Section 53 provides a power to grant a license.

It states that – A license may be granted by anyone in the circumstances and to the extent in and
to which he may transfer his interests in the property affected by the license.

The Power to grant a license is co-extensive with the power to transfer. A person can grant a
license in the circumstances and to the extent he can transfer his interest in the property affected
thereby.8  Power to grant a license is mere a personal right attaching only a personal obligation
on the grantor is more extensive than the power to impose an easement which affects the
property itself.

A license by a mortgagee or co-tenant who is lawfully in the sole possession and enjoyment of
the property, to do a thing which he could himself lawfully do is a valid license.9 Anyone who
can transfer property even if he is not the owner can grant a license. The license can also be
revoked by such a person.10

The grant of license may be express or implied which can be inferred from the conduct of the
grantor. Under Section 52, there is a grant of the right which is made by the grantor.it is to be
noted that without a grant, no license can be created.11

An agreement for license can subsist and continue to take effect only so long as the licensor
continues to enjoy a right, title and interest in the premises. On the termination of the right ot the
title, the agreement for license comes to an end. If the licensor is an tenant, the agreement for
license by him terminates with the tenancy, and the license ceases to be licensee.12

In order to grant a license, the licensor need not be the owner of the property. The tenancy rights
are also immovable rights of the tenant and thus, he can grant the license. However by virtue of
Section 53, the tenant can grant the license subject to the limitation and the extent to which he
8
Section 8, Indian Easements Act.
9
Illustration (c) to Section 8 of Indian Easements Act
10
Municipal Committee Ambala v. Lal Chand 1969 Cur.LJ 580 (Punj.)
11
Aggrawal and Modi Enterprises v. NDMC, 123 (2005) DLT 154
12
Ludhichem Industries v. Ahmed R. V. Peer Mohammad, AIR 1981 SC 1998

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may be able to transfer the interest, and the tenancy rights. A tenant is empowered to transfer his
interest but he can only do so till the term of his lease.

Forms of License –

Express or Implied

Section 54 provides that –

The grant of a license can be express or implied from the conduct of the grantor of the license,
and an agreement which purports to create an easement, but is incompetent for that purpose, may
operate to create a license.

A license is notionally created where a person is granted the right to use the premises without
becoming entitled to the exclusive possession of them or the circumstances and conduct of the
parties demonstrates that all that was intended was that the grantee should be granted a personal
privilege with no legal interest.

A mere license passes no interest nor alters or transfers property in any way but merely makes an
act lawful which without would have been unlawful. It is necessary that the license be in writing
or registered. Where the license is coupled with a grant of immovable property or of an interest
in immovable property, which is compulsorily registrable, it must be in writing or registered.

 Implied License

A license may be implied from the conduct of the licensor whereby he allows something to be
done on his land by another person who believes the land to be his own. A plea of implied
license may be based on the right of equity to intervene, must have for its foundation either a
contract or the existence of some fact which the legal owner is stopped from denying.

An everyday-life example of implied license is in the case of a shopkeeper in the invitation to

customers to enter his premises to do business.

License may also be implied from the conduct of the licensor which induces in the mind of the
licensee a reasonable belief that the former consents to the latter’s doing of certain acts, the
doing of which would have been unlawful without the consent.

The consent may also consist of words, spoken or written or acts and omissions on the part of the
licensor that would raise reasonable belief in the mind of the licensee that what he does is either
actively approved or has not been objected by the licensor.

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A license to enter upon the land of another is not implied by the sale of goods which are stored
upon the land, by a person other than the person against whom it is claimed, nor the failure of the
tenant to keep the premises maintained authorizes the landlord to enter upon the premises for that
purpose, in the absence of a contract to that effect.

 Express License

An express license is one which in direct terms authorizes the performance of a certain act; as a
license to keep a bar given by public authority. Express licenses govern more specific situations
where the permission has been expressly directed towards a particular individual. An example is
where owner invites guests for dinner or to stay in a room on his property. The license governs
only the specified period of the stay and any re-entry after that period without further permission
would constitute trespass.

It is important to note that a person cannot grant a license to himself or to himself jointly with
another. As a result, it must be granted by an owner of the property who is different from the
licensee.

As a grant forms the basis of an easement as well as a license, an agreement which purports to
create an easement may operate to create a license only if it is ineffectual for certain reasons to
create such easement. As both an easement and license legalize acts which would have been
unlawful otherwise, both go hand in hand but while license stops, an easement goes further and
incorporates itself with the property that belongs to the grantee, the beneficial enjoyment of
which is its most important characteristics.

How to use a license

In order to understand the use of license lets first understand essentials of license with suitable
examples which will clear us the usage of license.

1. THERE MUST BE TWO DIFFERENT PERSONS

The two persons consists of one person who is granting the licensee to the other. And the
other person is the one in whose favour the license has been granted.
2. THERE MUST BE A GRANT
License is a grant as it provides an authority to the person having the grant to make use of
a premises in a way prescribed.
3. LICENSE IS A POSITIVE RIGHT
It is a positive right as a person can only act positively through this grant. Which means
that the person having the grant can make use of a land or premises in a way prescribed
but cannot enforce the grantor in any negative obligation as it is mere a grant.

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Easement

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An easement is a property right that gives the holder of the right an interest in land that's owned
by someone else. It's ordinary for people to lack a clear understanding of easements and the
numerous legal problems that can arise in their creation, interpretation, and implementation.

Defining Easement 

An easement is a "non-possessory" property interest that allows the holder of the right of
the easement to have a right of way or use property that they do not own or possess.
Easement right doesn't allow the easement holder to occupy the land or to exclude others from
the land unless they interfere with his right of easement. In disparity to this rule, the property
owner may continue to use the easement and may exclude everyone except
the easement holder from the land.

A property or land affected or "burdened" by an easement is called a "servient estate," while the

land or person benefited by the easement is known as the "dominant estate." If
the easement benefits only a particular piece of land, it's said to be "appurtenant" to the land. If
the easement only benefits an individual personally, and not as an owner of a particular piece of
land, the easement is known as "in gross."

Most of the easements are affirmative, which means that they allow the use of another's land.
Negative easements are not much common, which usually involve preserving a person's access to
light or view by limiting what can be done on a neighboring or nearby property.

Creation of an Easement

Usually Easements are formed by a transfer in a deed or some other written document such as a

will or contract. Creating an easement requires the same formalities as required in transferring or
creating of other interests in land.

In some of the cases, a court will create an easement by implying its existence based on the
circumstances. Two common types of easements created by implication are easements of
necessity and easements implied from quasi-easements. Easements of necessity are usually
implied to give access to a landlocked piece of property. Easements that are implied from quasi-
easements are based on a landowner's prior use of part of his/her property for the benefit of
another portion of his land.

Other modes of creating easements include prescriptive use i.e. the routine, adverse use of

another's land, estoppels, custom, public trust, and condemnation.

Rights and Remedies Under an Easement

an easement holder has a right to do "whatever is reasonably convenient or necessary in order to

fully enjoy the purposes for which the easement was granted," as long as they do not place an
irrational burden on the servient land. Contrary to this, the owner of the servient land may make

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any use of that land that does not unjustifiably interfere with the easement holder's use of
the easement. Undue or irrational burden depends on the facts of each individual situation.

If a court determines that a servient estate is unjustifiably burdened by unreasonable use of

the easement, then in this situation owner has several potential legal remedies. One of the
remedies is when the court orders restricting the dominant owner to an appropriate enjoyment of
the easement, monetary damages when the easement holder exceeds the scope of their rights and
damages the servient estate, and in a few cases termination of the easement. 

Similarly, remedies exist for interference by the servient owner. as Interference with
an easement is a kind of trespass, and courts frequently order the removal of an obstruction to
an easement. If the act of owner of dominant estate causes or creates interference with
an easement causes a reduction in the value of the dominant estate, courts may also award
compensatory damages to the easement holder.

Transferability

In broad sense, an easement appurtenant is transferred with the dominant property even though
this is not mentioned in the transferring document. But the document transferring the dominant
estate can expressly provide that the easement shall not pass with the transfer of land.

As the easements in gross are treated as a right of personal enjoyment for the original holder,
they are usually non-transferable. But, several states have enacted statutes designed to facilitate
the transfer of easements in gross. This creates a way of using easement as the transfer
of easements in gross for commercial uses such as telephones, pipelines, transmission lines, and
railroads is often permitted.

Termination of Easements

Though permanent easements are the standard, but they can be terminated in a number of ways.

Some of the ways easements can be terminated:

 Easement can be used for the purpose of Construction work. Easements of limited
duration usually used to provide temporary access to a dominant estate will be terminated
upon the completion of construction work.

 Easement can be used for the purpose where one owner buys the other on which he was
enjoying easement. An easement can be terminated when an individual who owns
the dominant estate purchases the servient estate, or in a situation where the holder of
an easement releases his/her right in the easement (in writing) to the owner of the servient
estate. 

 Denunciation of an easement by a public authority, or disapproval of the servient

estate for a purpose that conflicts with the easement, terminates an existing easement. 

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How to use an easement

An easement is a right which an owner or occupier of certain premises, possess as such, for the
beneficial enjoyment of that premises to do something or to prevent something or continue to
prevent something in or upon or in respect of certain land or premises not his own

So, we can say that the use of easement as a right ensures the person using such right to enjoy the
benefits arising out of that premises on which the person has the easement right. This is a kind of
right that a person gets over someone else’s land.

Dominant and serviant heritages and their owners-

The land for the beneficial enjoyment of which the right exists is known as dominant heritage,
and the owner or occupier thereof called the dominant owner, the land on which the liability is
imposed is called the servient hostage, and owner of the occupier thus is known as the servient
owner.

Easement can be positive as well as negative.

on X’s land there’s a tree, the roots of the tree lies in the land of y. and the situation is such if y
cuts the roots then the tree will fall. So due to easement right of x, y cannot cut the roots without
the permission of x. This is an example of negative easement right.

Kinds of Easement-

Now let’s understand the usage of easement as a right through understanding different kinds of
it.

1. Continuous easement:

When a person possess a continuous right of enjoyment from others land.

Suppose there is a piece of land which belongs to a person x and adjacent to it there is a land
which belongs to y. there is water canal which is passes through the land of y and x is using the
water from the canal. So in this situation x has a continuous right of enjoyment from y’s land.

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2. Discontinuous easement:

When a person possess a discontinuous right of enjoyment from others land.

3. Apparent Easement:

Understanding how to use an easement through certain examples.

 X as the owner of a certain house, has a right of way over his neighbor Y’s land for
purposes related with the beneficial enjoyment of the house. This is an easement.

 X, as the owner of a certain property, has the right to go on his neighbor Y's land, and to
take water for the purposes of his household out of a spring intact therein. This is one of
the way to use easement as a right.

 X, as the owner of a certain property, has the right to take water from Y's stream to
supply the fountains in the garden attached to the house. In this way here X used his right
of easement.

 X, as the owner of a certain property which has a farm, has the right to graze a certain
number of his own cattle on Y's field, or to take, for the purpose of being used in the
house, by himself, his family, guests, lodgers and servants, water or fish out of Z's tank,
or timber out of P's wood, or to use, for the purpose of manuring his land, the leaves
which have fallen from the trees on M's land. These are certain ways in which the right of
easement is being used here.

CONCLUSION

Lease, License, and easement are certain ways through which a person enjoys the use of certain
property without actually owning it. Due of financial Constraint transfer of property is not

15
possible for every individual i.e. each individual cannot afford to purchase a property in times of
need. There are certain modes of transferring property temporarily that enables every citizen the
right of enjoying any property which are Lease, license and easement.

In order to use these modes of enjoying property we need to know how to use them and for that
we need to understand what does a license, lease and easement means. Simply they have their
own purposes of usage and ways to use them.

Lease enables a person to use certain property without owning it while creating his interest in
that property. Whereas license does the same but without creating any interest in that property.
Easement is a right which a person gets to enjoy a certain aspect of benefits over someone else’s
property.

REFERENCES

 https://www.indiacode.nic.in/bitstream/123456789/2338/1/A1882-04.pdf

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 http://legislative.gov.in/actsofparliamentfromtheyear/transfer-property-act-1882
 https://blog.ipleaders.in/lease-under-tpa-1882/
 https://www.lawctopus.com/academike/definition-license/
 http://legislative.gov.in/sites/default/files/A1882-05.pdf

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