Author: Hritika Singh, Gokhale Education Society’s NBT Law College
To the point
Easement plays a vital role in property law, allowing the owner of the land with essential rights while creating an obligation on others. Easement is necessarily granted with express, implied or prescription.The term “easement,” which refers to a legal right that permits one person to use another’s property in a limited way, usually for access or utility-related purposes, is a basic idea that regularly comes up in real estate transactions. In order to preserve the efficient flow of property-related rights and obligations, the concept of easement is crucial.
However, transfer of property act or usually known as TPA deals with significant methods for transaction through sale, mortgage, lease, exchange and gifting of property.
An easement is described in the section 4 of the Indian easement act of 1882. The act deals with the privileges which are being enjoyed by its original owner which is referred as dominant owner and the other one is referred as servient owner. In other words, easement is typically righteous usage of a way for access, drainage system, light, air, or water. It is crucial in circumstances like where the traits or positioning of property necessarily a piece of land lacks direct access from a public way, where it is connected to an adjoining land for such access.
Abstract
Easement by prescription is a method where an individual acquires a right which is legal over someone’s piece of land by long, continuous and hostile use, which is stated in the Indian easement act of 1882. Moreover, there are many other ways for an easement to occur and from one of them is easement by necessity which can be defined as when there is nearly no possible way to use any particular piece of land then it becomes a necessity. Easement helps regulate the practical hurldes arising from the location of the specific site, along with features of the geographic land, or any other respective characteristics of a property.
The legal importance of the act is specifically when it is used within the framework of property related transactions and legal disputes.
This article explores that whether easement by necessity or prescription can or cannot be claimed when it can be accessed alternatively with uninterrupted usage of 20 years has not been proved with the recent judgment of supreme court.
Use of legal jargon
a) Servient heritage/ Dominant heritage; are the legal concepts where an individual’s right of a particular property is being claimed by the other which is known as servient owner.
b) Animus possidendi is a concept where it suggests the usage or a facility of the right.
c) nec vi, nec clam, nec precario; this phrase is originated from Latin formula which suggests a basic test for prescritive or adverse possession rights. It is translated as “without force, without secrecy, without permission.”
The Proof
Easement by prescription is codified in the section 15 of the Indian easement act, where it suggests the uninterrupted usage of a property which transforms into a legally enforceable easement.
However, there are few essential which should be fulfilled which are the following:
1.The usage of property should be uninterrupted and visible to everyone present around, in another words the usage of the specific property should not be concealed or notorious in any manner otherwise it would be eligible for easement of prescription.
2.It should be displayed as a right without force or in another words it can be suggested as “nec vi, nec clam, nec precario”. That the usage of the land is without force, secrecy and without permission.
3.It should be an easement and not licence.
4.The easement of prescriptive period will be counted backwards from two years prior to the suit, as stated in section 15 of the Indian easement act’s explanation.
The concept of easement of prescription is comparable to adverse possession, wherein a person establishes legal rights over someone’s piece of land by open and unconcealed usage for extended period of time.
Moreover, we have easement by necessity on the other hand which usually arises when a land or property is present at a place and it makes the other owner or the servient owner hard to access or use without the benefit of a right over an adjacent land. For instance, there is a land which is locked and the owner has to traverse through others land for the usage then it becomes a necessity for the servient owner to use the property.
Easement by necessity is stated in the section 13 of the act, unlike the easement of prescription it is not based on continuous usage but it depends upon strict necessity ceasing when the need ends. It deals with the concept of unity of tittle and severance and the legal formula, the sine qua non of absolute necessity.
Case Laws
Manisha Mahendra Gala & ors v. Shalini Bhagwan Avatramani & ors. (2024)
The Supreme court of India in the above mentioned case dealt with clash over a 20ft wide road or in lamen language called as rasta which was claimed as a right of way easement. However, the property with the road owned by the plaintiff, while the other one was claimed by the defendant as a right of passage over it to get to their property.
The court held that the appellant does not require any easmentary authority over the road which is in dispute, ” much less by prescription, necessity or under and agreement”, and discuss the suit.
Justiniano Antao vs BeradetteB. Pereira(2005) 1 SCC 471:
The court held that the plaintiff couldn’t form a prescritive easment, focusing on the pleading that it must specify the start date and ned date of the 20 year duration. The mere existence of the concerned pathway could not justify the acquisition of easmentary right with them meeting the right essential of the statutory provision. The suit suggests that easment by prescription requires to fulfil the essential of it which are peaceful and righteous usage of the property for 20 years.
Conclusion
Easement is a crucial aspect of property law. It includes a dominant or say owner of the property using another’s land for a particular beneficiary usage. It involves general access, drainage, air and light. The easement act of 1882, is a codified law for grasping and using the rights given under the act. However, there are ways and remedies present for infringement of easment that safeguards the rights of the dominant owner if they are being violated or misued in any manner. Property law suggests various perspective in which easment is necessary for the use of land where it has various types like continuous, discountinous, apparent, non apparent, affirmative, and negative. Moreover, there are methods of creation and acquisition available,h which eases the nature of the act through adaptability of easment rights.
FAQS
Q1. Can 20 years be enough to meet the essentials of easment by prescription?
No. The law also requires open, serene, continuous and as of right use for full 20 years. Just stating the “old” or “long” standing isn’t enough. Courts have thrown out claims when the paper doesn’t show the exact period or when there’s no proof of unfavourable, non- permissive enjoyment.
Q2. What happens to the easement of necessity after 20 years of time period, can it become prescritive?
No, as per the judicial desicion the easement by necessity occurs by implication of law through necessity, however on the other hand a presentation occurs from adverse user.
Q3 Is it possible for the necessity of easement to co exist with easement by prescription?
Not necessarily, courts have rejected the pleas to conjunctive sans distinct evidence. Whereas necessity requires permission derived access and prescription on the other hand does not.
Q4 When does the right in easement extinguishes?
According to section 47 of the Indian easement act 1882, it extinguishes upon necessity cessation, where servient owner may require declaration.
