Easement: A legal right to enjoy property
This right which is recognised by law and is defined under the Indian Easement Act, 1882, confers limited restrictive rights to property owners
An owner of immoveable property is entitled to enjoy the benefits and rights arising out of his property. Moreover, he/she can enjoy a few privileges from adjoining land and property if his/ her own property is lacking in some fundamental ways. This right is known as right of easement. For example, A owns a certain house which is surrounded by B’s land who is incidentally A’s neighbour. A being the owner of the house adjacent to B’s land has right of way over B’s land to and from his house for the beneficial enjoyment of his house.
Such right is also recognised by law and is defined under the Indian Easement Act, 1882 (“Act”). The right of easement does not entitle the owner/ user with the possession and title over the other’s property but only confers limited/restrictive right such as right of way/ passage, access, light, air, support etc.
The easement arising out of want of basic amenities or fundamentally required for enjoyment of a property such as need for passage, electricity, air, water is essentially recognised as easement arising out of necessity. While easementary rights recognised may vary from jurisdiction to jurisdiction, the fundamental form of easementary rights recognised across the world and which are enforceable are mostly easements of necessity. Indian courts have also routinely upheld the property owners right to easement out of necessity.
Recently in Sri Sailendra Nath Pal & Another vs Neelachal Housing Co-Operative & Ors., the Honourable High Court of Calcutta upheld the right of easement of necessity. In the said case, the house of the appellants was surrounded by the land owned by Neelachal Housing Cooperative Society (Society). The appellants had filed an application before the competent authority for get- ting an electric connection to their premises. The society however raised objections for laying down cables underneath its land for supply of electricity to the house of the appellant. The society further contended that the land surrounding the land of the appellant belongs to the society and the appellants have no right to use any portion of the aforementioned land without the society’s consent. This reservation is applicable even for the purpose of getting an electric connection.
The High Court considered the fact that the premises of the appellants is surrounded by the land of the society from all sides and the appellants have the right to enjoy the electricity in their premises for effective use and enjoyment of the said premises. The Court observed that in order to get electricity to the premises, the appellants were in dire need of taking cables under neath or over surrounding land of the society. Therefore, such a right of taking cables underneath or over surrounding land is a right of easement of necessity. The premises of the appellants can- not be effectively/beneficially used without such right of easement. The right of easement being a legal right, the society cannot interfere with it and raise any objections regarding the same. The High Court therefore allowed the laying of the electric cables underneath the land owned by the society for supply of electricity to the appellant considering it a right of easement of necessity.
Every owner is entitled to enjoy his right to easement without any disturbance from any person. The Act provides that the court of law may also grant injunction restraining the disturbance of the easement. In case the hindrance or disturbance has caused substantial damage to the owner/plaintiff, the owner having easementary right can also sue such a person for compensation . For example A, as the owner of a house has a right of way over B’s land. C unlawfully enters on B’s land and obstructs A in his right of way. A may sue C for compensation for the obstruction. In another case, if B obstructs A in his way, A can enforce its easementary right against B as well.
In modern and developed cities having well conceptualised master plans and colonies and requiring prior approved building plans the relevance of easementary rights by customs, prescription/usage are diminishing. However, easementary rights still continue to be recognised and property owners should be aware of these entitlements as they are fundamental to enjoying their properties.
Home owners often need ‘limited’ rights over other properties to fully enjoy their own properties