Easementary Rights: An Overview

Posted On - 27 July, 2022 • By - Sheetal Agarwal

When people began residing in communities, they realized that doing so would enable them to protect each other’s privacy and advance society as a whole. As a result, the right of easement dates back to the time when private property was recognized in a developed society. Such a right stems from certain moral principles which permit a third party to enjoy the benefits of a property on which they have neither ownership nor possession. As society has advanced, the law has given easement rights more respect, necessitating the need for us to adopt a certain point of view.

An easement is a legal right to inhabit or use another person’s property for a certain purpose. The original owner still possesses the legal title to the property, but it is used in a limited manner. This concept has been governed by the Indian Easements Act, 1882. A legally binding easement must be documented in writing, and the property deed specifies its precise position. Utility providers frequently have access through easements to establish and maintain power, phone, and cable lines as well as to drain water. A few examples of the right of easement include the right of way, right to discharge rainwater, right to sunlight etc.

The fundamental characteristics of an easement, in the strict sense of the doctrine, are as follows:

(a) It is an incorporeal right; a right to the use and enjoyment of land, not to the land itself;

(b) It is based on corporeal property; and

(c) It requires two distinct tenements for its constitution, the “dominant tenement” that enjoys the right and the “servient tenement” that submits to it.

According to the court’s ruling in Re Ellenborough Park[1], certain conditions must be met for an easement to be legal.

A right of “possession” of the property is not granted to the holder of an easement, in contrast to a lease. An easementary right is thus a provision that is created for a particular remedy from a particular infringement of common fundamental rights.

[1] Re Ellenborough Park, 1 Ch 131 (EWCA: 1955)