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THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES (A

State University Est. by Act 27, 2005 of Kerala State Legislature)
Kalamassery, Kochi - 683503, Kerala

ASSIGNMENT -LAW OF TRANSFER OF PROPERTY

CREATION AND TERMINATION OF EASEMENTS.
SEMESTER-4

Submitted By:
Nakshathra Baiju(1760)
B.A. LL. B. (Hons.),
The National University of Advanced Legal Studies (NUALS)

Submitted To:
Mr.Sandeep Menon Nandakumar
Faculty in charge - Law of Transfer of Property
The National University of Advanced Legal Studies (NUALS)
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ACKNOWLEDGEMENT
I would like to express my deepest gratitude to our Faculty coordinator Mr.Sandeep Menon
Nandakumar, The National University of Advanced Legal Studies,whose guidance has enriched
the subject knowledge and understanding of the topic. I would like to thank him for the
outstanding experience he arranged for the research paper and for helping us grow academically.
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INTRODUCTION TO EASEMENTS. 4
FEATURES OF EASEMENTS. 5
a. Continuous 6
b. Dis-continuous 6
c. Apparent 6
d. Non Apparent. 7
CREATION AND TERMINATIONS OF EASEMENTS-EASEMENT OF GRANT,IMPLICATION
AND PRESCRIPTION. 7
1. Easements by Grant 8
2. Easements by Implication 9
3. Easements by Prescription 11
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CREATION AND TERMINATION OF EASEMENTS.

INTRODUCTION TO EASEMENTS.

Easements have been provided and defined under Section 4 of Indian Easement
Act,1882.Section 4 reads : “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.” 1
Easement is a legal right of a person to use another person’s land or property for a specific and
limited person,while the legal title or ownership still remains with the owner of the land.It
includes the right to do or continue to do something or to prevent or to continue to prevent
something in connection with or in respect of some other land, which is not his own, for the
complete enjoyment of his own land with convenience, advantage or any amenity or any
necessity.

Right to easements include:

1. Right to sunlight
2. Right to way
3. Right of Air

FEATURES OF EASEMENTS.

1. Dominant and Servient heritage-The owner or occupier referred to in the provision is

known as the Dominant Owner and the land for the benefit of which the easementary
right exists is called Dominant Heritage.And the owner upon whose land the liability is

1
• Indian Easement Act Act, 1882, § 4, No.188205, Acts of Parliament,1882 (India).
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imposed is known as the Serviant Owner and the land on which such a liability is
imposed to do or prevent something, is known as the Servient Heritage.Easement is the
right exercised by the owner or occupier of one land for enjoying the benefit of his/her
land, over the land of some other person. Dominant and servient heritage cannot be
one.Thus necessitating the existence of two separate properties.
2. The easement rights can only be exercised on two properties with separate owners.
3. The object of easements is that the dominant owner enjoys it in a way which includes
express and implied benefits.

Section 5 of the Indian Easements Act reads-

“Easements are either continuous or discontinuous, apparent or non-apparent.
A continuous easement is one whose enjoyment is, or may be, continual without the act of man.
A discontinuous easement is one that needs the act of man for its enjoyment.
An apparent easement is one the existence of which is shown by some permanent sign which,
upon careful inspection by a competent person, would be visible to him.
A non-apparent easement is one that has no such sign.”2

2
• Indian Easement Act Act, 1882, § 5, No.188205, Acts of Parliament,1882 (India).
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a. Continuous-A continuous easement is a type of easement that is created when a piece of

land is owned by two or more different people. It grants the right to use or access the
property of another person in order to reach a certain point. This type of easement is
usually used to allow access to a public road or another piece of property. The right of
access is granted in perpetuity, meaning that it lasts indefinitely and can be passed down
to future generations. Continuous easements are sometimes referred to as “appurtenant
easements” because they are attached to the land in question. They are usually created by
a written agreement between the parties involved.
b. Dis-continuous-A discontinuous easement is a type of easement that is created when a
piece of land is owned by two or more different people. It grants the right to use or access
the property of another person for a specific period of time or for a specific purpose. This
type of easement is usually used to allow access to a public road or another piece of
property for a limited amount of time or for a specific purpose. The right of access may
be revoked at any time if the purpose of the easement is no longer being served.
Discontinuous easements are sometimes referred to as “negative easements” because they
limit the rights of the other parties involved. They are typically created by a written
agreement between the parties involved.
c. Apparent -An apparent easement is a type of easement that is created when a piece of
land is owned by two or more different people. It grants the right to use or access the
property of another for a specific purpose even though there is no written agreement
between the parties. This type of easement is usually used to allow access to a public road
or another piece of property. The right of access is granted based on the physical evidence
that the easement has been used for a long period of time, usually at least twenty years.
Apparent easements are sometimes referred to as “prescriptive easements” because they
are based on the long-term use of the land in question.
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d. Non Apparent.-A non-apparent easement is a type of easement that is created when a

piece of land is owned by two or more different people. It grants the right to use or access
the property of another, even though there is no physical evidence of the easement. This
type of easement is usually used to allow access to a public road or another piece of
property. The right of access is granted based on a written agreement between the parties
involved. Non-apparent easements are sometimes referred to as “express easements”
because they are created through a written agreement.

CREATION AND TERMINATIONS OF EASEMENTS-EASEMENT OF

GRANT,IMPLICATION AND PRESCRIPTION.

Easements are typically created in one of three ways: by express grant, by implication, or by
prescription.3 An express grant is an agreement between two parties that is usually in the form of
a deed. Implication occurs when an easement is necessary for the reasonable use and enjoyment
of land, even though there is no express grant. Lastly, prescription is a method of acquiring an
easement by proving that the use of the easement was open, notorious, continuous, and adverse
for the statutory period of time.

Each state has its own laws and regulations regarding the creation and enforcement of easements.
It is important to consult with an attorney or other legal professional to understand the specific
laws in your state.

3
Pooja Kapur,An Overview: Law of Easements in India,June 11, 2019.
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1. Easements by Grant
Easements by grant are created when two parties agree to grant a right of access or use to
another party. This type of easement is typically used to allow people to access property
owned by someone else, such as a utility company needing access to a home to install
power lines. Easements by grant are usually in the form of a deed, and they can be
created as either an affirmative or negative easement. Affirmative easements grant the
holder of the easement the right to do something on the land, such as build a road.
Negative easements, on the other hand, restrict the holder of the easement from doing
something on the land, such as blocking a view.
Easements by grant are created through a written agreement between two parties. This
agreement is usually in the form of a deed and must be signed by both parties. The deed
should specify the type of easement, the purpose of the easement, and the rights that the
holder of the easement will have. The deed should also indicate the duration of the
easement, as well as any other terms that the parties agree to. Once the deed is signed by
both parties, the easement is legally established.
Easements by grant are a type of property right that allows one party to use or access
another party’s land. They are usually created through a written agreement between two
parties, usually in the form of a deed. The deed should specify the type of easement, the
purpose of the easement, the rights that the holder of the easement will have, the duration
of the easement, and any other terms that the parties agree to. Easements by grant are
typically either affirmative or negative, granting the holder of the easement the right to do
something (affirmative) or blocking them from doing something (negative). Easements
by grant are typically created for a specific purpose and for a specific duration of time.
They are typically irrevocable and binding on both parties.
Easements by grant are subject to certain exceptions. These include the following:

a. Laches: If the grantee of an easement fails to take action to enforce their rights
over a period of time, they may be barred from enforcing their rights.
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b. Estoppel: If the grantor of an easement knowingly and intentionally led the

grantee to believe that the grantee had some right or privilege on the grantor’s
property, the grantor may be prevented from later denying that right or privilege.
c. Necessity: If an easement is needed to access a property that is otherwise
inaccessible, the grantor may be required to grant an easement.
d. Prescription: If an easement was used openly, continuously, and adversely for a
certain period of time, the grantee may be able to acquire a prescriptive easement.
e. Statute of limitations: An easement may be terminated if the grantor brings a
timely legal action to challenge the easement.

An easement by grant can be terminated in several ways. The most common way is for
the grantor to revoke the easement by formally notifying the grantee in writing. The
grantor may also terminate the easement if the purpose for which it was created no longer
exists or if the grantee violates the terms of the easement. Lastly, an easement by grant
may be terminated if it is abandoned by the grantee.

2. Easements by Implication
Easements by implication are created when an easement is necessary for the reasonable
use and enjoyment of land, even though there is no express grant. These easements are
created when a court finds that the circumstances surrounding the ownership of the land
indicate that an easement should exist. For example, if a piece of property is landlocked
and there is no other reasonable way to access it, a court may find that an implied
easement exists. Easements by implication can also be created when a parcel of land is
divided and one parcel is of no use without access to the other, or when an owner of land
sells a portion of their land but does not provide access to the remaining land.
Easements by implication are created when a court finds that the circumstances
surrounding the ownership of the land indicate that an easement should exist. The court
will typically look at the intentions of the parties, the surrounding circumstances, and the
foreseeable uses of the land when determining whether an easement should exist.
Generally, the court must find that the easement is necessary for the reasonable use and
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enjoyment of the land. Additionally, the court must find that the easement was intended
by the parties at the time of transfer.
Easements by implication are created when a court finds that the circumstances
surrounding the ownership of the land indicate that an easement should exist. These
easements are typically created to allow one party to access or use land owned by another
party, even though there is no express grant. Easements by implication are typically
limited in scope, as they are only intended to provide access or use to the land that is
necessary for the reasonable use and enjoyment of the land. Additionally, easements by
implication are usually not transferrable, meaning that they cannot be granted to another
party.
Easements by implication are subject to certain exceptions. These include the following:
a. Necessity: If an easement is necessary for the reasonable use and enjoyment of
land, the court may be required to grant an easement.
b. Estoppel: If the owner of the property knowingly and intentionally led the holder
of the easement to believe that they had some right or privilege on the owner’s
property, the owner may be prevented from later denying that right or privilege.
c. Prescription: If an easement was used openly, continuously, and adversely for a
certain period of time, the holder of the easement may be able to acquire a
prescriptive easement.
d. Statute of limitations: An easement may be terminated if the owner brings a
timely legal action to challenge the easement.

Easements by implication can be terminated in several ways. The most common way is
for the owner of the property to revoke the easement by formally notifying the holder of
the easement in writing. The owner may also terminate the easement if the purpose for
which it was created no longer exists or if the holder of the easement violates the terms of
the easement. Lastly, an easement by implication may be terminated if it is abandoned by
the holder of the easement.
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3. Easements by Prescription
Easements by prescription are created when an easement is acquired by proving that the
use of the easement was open, notorious, continuous, and adverse for the statutory period
of time. This type of easement is typically used to allow people to access property owned
by someone else, such as a utility company needing access to a home to install power
lines. Easements by prescription are usually affirmative in nature, granting the holder of
the easement the right to do something on the land, such as build a road.
Easements by prescription are created by proving that the use of the easement was open,
notorious, continuous, and adverse for the statutory period of time. The statutory period
of time varies by state, but typically ranges from five to twenty years. In order to prove
that the use of the easement was open, notorious, continuous, and adverse, the holder of
the easement must show that they had actual or constructive knowledge of the use, that
the use was open and obvious, that the use was consistent and continuous, and that the
use was hostile or adverse to the wishes of the owner of the land.
Easements by prescription are created when an easement is acquired by proving that the
use of the easement was open, notorious, continuous, and adverse for the statutory period
of time. These easements are typically affirmative in nature, granting the holder of the
easement the right to do something on the land, such as build a road. Easements by
prescription are typically irrevocable and binding on both parties. Additionally, they may
be transferrable, meaning that they can be granted to another party.
These include the following:
a. Necessity: If an easement is needed to access a property that is otherwise
inaccessible, the court may be required to grant an easement.
b. Estoppel: If the owner of the property knowingly and intentionally led the holder
of the easement to believe that they had some right or privilege on the owner’s
property, the owner may be prevented from later denying that right or privilege.
c. Statute of limitations: An easement may be terminated if the owner brings a
timely legal action to challenge the easement.
Easements by prescription are subject to certain exceptions.
Easements by prescription can be terminated in several ways. The most common way is
for the owner of the property to revoke the easement by formally notifying the holder of
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the easement in writing. The owner may also terminate the easement if the purpose for
which it was created no longer exists or if the holder of the easement violates the terms of
the easement. Lastly, an easement by prescription may be terminated if it is abandoned by
the holder of the easement.