Introduction
An Easement is a right possessed by the owner or occupier of a certain land for the purpose of beneficial enjoyment of such land. In order to enjoy their land property effectively, this right is very important for the owners and occupiers of the land. The absence of such right deprives the person i.e. the owner or occupier from the enjoyment of their land.
Definition
The Glossary Definition of the term Easement says that-
An Easement is a right which the owner or occupier of a certain land possesses for the beneficial enjoyment of that land, to do or to continue to do something, or to prevent or continue to prevent something being done, in or upon, or in respect of, certain other land, not his own.
Analysis of the definition of the term Easement
i. Easement is a right which is possessed by the owner or occupier of certain land.
ii. Easement is the right for the beneficial enjoyment of that land.
iii. Easement refers to do or continue to do, or prevent or continue to prevent something concerning the other land, which does not belong to such owner or occupier.
iv. There is a dominant heritage and dominant owner.
v. Easement is a right which the owner or occupier of certain land gets for the beneficial enjoyment of his own land.
vi. The land in respect of which such right exists, is known as ‘dominant heritage’ and the owner or occupier of such land is known as ‘dominant owner’.
Example: A owns a house to which he has the way over the land of his Neighbour B, which is connected with the land on which A’s house stands. In this example, the right which A has acquired, is an Easement right.
Servient Heritage and Servient Owner:
The land on which the easement right is acquired or some liability is imposed on the land, such land is called ‘Servient Heritage’ and the owner or occupier of such land is called ‘servient owner’
Example: ‘A’ has a certain land for the cultivation, and therefore, he has the right to draw water from the land of ‘B’. In this example, some liability is imposed on the land of ‘B’ for the beneficial enjoyment of ‘A’s land.
Characteristics or Essentials of Easement:
1) There must be owner or occupier of certain land:
In order to create easement right or an easement, there must be an owner or occupier of certain land.
2) There must be a right to do or continue to do something in respect of some other land:
The owner or occupier must have been vested with the right to do or continue to do something, or to prevent or continue to prevent something being done is respect of the land which does not belong to him.
3) The land of servient heritage must not be owned by the dominant owner:
The land on which the liability is imposed, must not be owned by the dominant owner.
4) There must be right of beneficial enjoyment of land:
The right should enable the owner or the occupier of the dominant heritage to use it in a better way and enjoy it properly.
Learn more about the kinds of Easement
An Easement could be both an Appurtenance and Encumbrance it depends upon the perspective. For example, if Mr. A has an easement across Mr. B’s property to enter and leave his property that is a benefit to his property and if he sells his property to a third party that easement transfers along with it, so that easement is an appurtenance that Mr. A has to his property whereas if property is the property across which the easement lies that is a burden on Mr. B’s property. It is an encumbrance on Mr. B’s property so to him that easement is an encumbrance. It is not an appurtenance but to B. It is a benefit to A therefore, it is an appurtenance which transfers with the property if and when he sells it.
I am a Commerce Graduate and Real Estate Consultant.