PROFESSIONAL PRACTICE & ETHICS

Unit 4 – Part 2
EASEMENT
Easement:
• Plays important role in valuation of properties
• Planning and design of buildings is affected by it
• These are certain rights concerned with reference to the immovable property
• It is a right or an obligation which arises as a result of local or general customs
• It is a right of the owner for the beneficial enjoyment of the land
• The land on which the beneficial enjoyment has been created is called ‘dominant
heritage’ and its owner is called ‘the dominant owner’
• The land on which easement is created is called the ‘servient heritage’ and the
owner is called ‘the servient owner’
• The word ‘land’ in such cases includes things which are permanently attached to
the land such as buildings, trees, compound walls and other features
• The word ‘beneficial enjoyment’ includes advantages and amenities such as water
supply, drainage lines, etc.
Types:
• Continuous Easement
• Discontinuous Easement
• Apparent Easement
• Permanent Easement
Continuous Easement:
• It is one whose enjoyment is continuous without the act of man
• Examples:
• Right to discharge rainwater
• Right to receive light and ventilation from neighbouring land
• Laying of drain line
• Laying of services like electric lines, etc. through servient heritage
Discontinuous Easement:
• A right of way acquired by property A over property B is a discontinuous easement,
If owner A walks in owner B’s property: It may be taken for enjoyment of easement
right, but this may not be a continuous process, it may happen few times a day or
even less frequently
• If ‘A’ builds a road through B property without knowledge and consent, it becomes
a continuous easement
Apparent Easement:
• It is something, the existence of which can be Property B
Property A

seen clearly with ease

• Easement of light and ventilation is an
apparent easement
• Discharge of rainwater from ‘property A roof’
to ‘property B’ is an apparent easement
• Construction of tar road over property B is an
apparent easement, however if it is just a
pathway then it is a non-apparent easement
• An open drain passing through property B is
an apparent easement, but underground
drainage lines are ‘non-apparent’ easement
unless a manhole or a chamber is seen on
property B
Permanent Easement:
• An easement which can be enjoyed by the dominant owner permanently and
without interruption caused by the servient owner
• Easement which falls under this category are:
• Right to perform religious acts
• Right to fetch water from the natural source in neighbour’s property
Following ways to acquire Easement rights:
• Easement by prescription:
• A type of easement where owner allows people to pass through his land without any
objection or obstruction for a continuous period of 20 years or allows the neighbour
to enjoy light and air from his property
• Easement by express grant (covenant):
• A type where owner permits people to pass through his land with full knowledge and
consent or creates some kind of right through a written agreement
• Easement by implied grant:
• A type where owner does some kind of act which implies creation of certain right over
his property
• Example: When an owner sells a rear portion of his property not having independent
access, it is implied that he will permit the purchaser to pass through his land
• Easement by custom:
• A type where people enjoy rights for use of a piece of land for social activity year after
year (period of 20 or more years) as a custom
Prevention of easement:
Prevention of easement of light and air:
• If owner A realizes that neighbour B is building a
wall close to A boundary with openings in it to
derive light and air from his property, then he
has to sign a written agreement with owner B
that he wont claim easement of light and air in
future. By doing so, owner B can enjoy light and
air as long as owner A doesn’t build any building
in his land
• If owner B refuses to sign agreement, owner A
has no other remedy but to erect a screen,
temporary or permanent in his own land with
his own money to prevent B from acquiring
easement
Prevention of easement of Right of way:
• If owner A identifies that owner B or public is passing through his land, he must erect a
fence around his land to prevent people from acquiring an easement
• Warning signage need to be displayed along the fence
• In spite of doing all this if still people pass through, then owner A may file a police
complaint and get them arrested
• Police complaint record photo displayed on the signage will help in preventing the
easement

Prevention of easement of support:

• If owner A wants to provide a basement in his own plot, he must construct a retaining wall
in small length so that the entire stretch of B compound wall is not affected
• If B building is too close to boundary, he must provide shoring for B building and support
trees in B compound so that there is no sinking of foundation or plinth or uprooting trees
• It is also advisable to insure against accidental damage to the neighbouring building
Prevention of easement of services:
• If owner A finds that owner B is providing a drain or a water pipe or an electric cable
through his land, he can physically remove all such things from his land
• If owner B still persists in his actions, then owner A can raise a complaint, and also can take
the matter to court of law
• Similar conditions apply for other services like electrical lines, etc.

Extinguishing of easement:
• Easement can become extinguished or cancelled by the dominant owner by releasing
it to the servient owner
• This can be done through an agreement in writing preferably on a stamp paper
• It is necessary to register such an agreement, such release of any easement can be
entirely voluntary or it can be due to some compensation being paid by the servient
owner.
• This kind of release is termed as ‘express release’
Ways of Extinguishing easement:
• The dominant owner makes permanent changes like shifting of wall, altering the position or closing the
light permanently.
• If the dominant owner gives up the right of way for a period of 20 years, it amounts to extinction of
easement
• If the dominant owner constructs a new drain in his own property or lays cables in his own land and stop
taking advantage of the old system
• If the dominant owner changes the over hang of his roof and the rain water stops falling in the servient
building
• Due to availability of piped water supply for the dominant owner, he stops using natural resource water
from the servient owner
• When either the dominant or servient heritage is completely destroyed due to any natural disaster.
However, easement is revived if the property is restored within a period of 20 years
• An easement is temporarily suspended when either the dominant owner or the servient owner occupy
each other’s heritage for a limited period
• When the dominant owner acquires ownership of the servient heritage
• When government acquires any land after paying compensation to the owner and all the interested
parties who claim easement to it