Verifying Property Before Purchase In India – Easement Rights

INTRODUCTION

When purchasing a property in India, the Indian Legal system provides for regulations that govern the procedure in which property in India can be sold and/or purchased. One of the most important Act called as the Transfer of Property Act, 1882 is a considerable body of law that guides the transfer of property in India. It covers the procedures, the legal framework, and rights in regard to the transfer of various categories of property from one person to another.

A fundamental concept that frequently arises in property transactions is the “Easement,” which denotes a legal entitlement that allows one individual to utilize another’s property in a restricted manner, generally for access or utility-related functions. The notion of easement is important to maintain the effective flow of the rights and duties related to properties. The law governing easement is laid down under the Indian Easements Act of 1882. Easement as defined under the Act, refers to a privilege that one owner of the property (known as the dominant owner) has concerning property belonging to another (known as the servient property).

The aforesaid easement rights can be of various types such as the right of way for access, and drainage, light, air, or even water. Therefore, it is important that before purchasing  any property in India especially a parcel of land, the purchaser is fully aware of the easement rights available over the property. It is advisable that before purchasing the land, the purchaser carries out a thorough due diligence of the Property and carryout a search with the Registrar of Property in which the land is located to ensure whether such rights are available over the said property.  Easements play a crucial role in circumstances where the characteristics or positioning of a property necessitate reliance on a neighboring property for essential utilities.

For example, a property lacking direct access to a public road may depend on the adjoining land for such access. Such right is a fundamental right of the property for the proper use and enjoyment of the Property.

GRANT OF EASEMENT

There are various ways through which easement is granted. The common methods through which easements may be created or acquired include:

1. By Express Grant: It usually takes the form of a deed or a written agreement between the dominant owner and the servient owner.
2. By Necessity: An easement by necessity comes into being when it is impossible for a property to reasonably be accessed or used without trespassing on neighboring land. The law automatically erects such an easement so that the dominant property may be accessed to be utilized. It is an implied easement formed not from agreement but from necessity to make the land usable.
3. By Prescription: Sometimes easements are also acquired through long use which is considered an easement by prescription.  Under the Act, if someone has enjoyed another’s property openly, continuously, and peacefully for 20 years then he can claim an easement over that property.

REMEDY FOR INFRINGEMENT

When the rights of easement is violated or obstructed, the law provides several remedies to protect the interest of the dominant owner. The law provides judicial and statutory remedies for the redress of grievances and revival of easement rights such as follows:

1. Injunction: Infringement of easement rights is most frequently remedied by an injunction. The court can therefore be moved by the dominant owner to provide a prohibitory injunction to restrain the servient owner from further doing acts that obstruct or infringe upon the easement.
2. Damages: In a situation where an encroachment of an easement has caused loss to the dominant owner, then the court may award compensatory damages. This is a remedy issued to compensate the dominant owner from the injury, distress, or financial loss resulting from the violation of an easement right.
3. Restoring the Easement: The court can thus order restoring the easement into its previous state. In this case, it can evict any interference that may have at some point in time restricted the dominus’s use of the servient tenement.

CONCLUSION

Easements are a prime aspect of property law. It involves one owner of the property using another’s land for specific purposes. An understanding of easement creation and acquisition rights and the rights to enforce these rights promises that the property owner and legal expert engaged in property transaction processes can effectively understand those procedures with the least possible disputes and the fullest realization of the land utility.