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Professional Practice & Ethics Unit 4 - Part 2

Easements play an important role in property valuation and design. An easement provides certain rights regarding use of another's immovable property and can arise through custom. There are different types of easements including continuous, discontinuous, apparent, and permanent easements. Easements can be acquired through prescription, express grant, implied grant, or custom. Servient landowners can prevent easements from being acquired by erecting fences and signs or filing police complaints regarding trespassing. Easements can be extinguished through a written release agreement between owners or if the dominant owner stops exercising easement rights for 20 years.

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61 views

Professional Practice & Ethics Unit 4 - Part 2

Easements play an important role in property valuation and design. An easement provides certain rights regarding use of another's immovable property and can arise through custom. There are different types of easements including continuous, discontinuous, apparent, and permanent easements. Easements can be acquired through prescription, express grant, implied grant, or custom. Servient landowners can prevent easements from being acquired by erecting fences and signs or filing police complaints regarding trespassing. Easements can be extinguished through a written release agreement between owners or if the dominant owner stops exercising easement rights for 20 years.

Uploaded by

Sêlva Avlês
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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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

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