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Index
2. Essentials of Easement 4
3. Classification of Easement 5
6. Extinction of Easements 9
7. SUSPENSION OF EASEMENTS 10
8. REVIVAL OF EASEMENTS 11
9. INTRODUCTION OF LICENSE 12
14. CASES 18
The word ‘land’ refers to everything permanently attached to the earth and the words
‘beneficial enjoyment’ denotes convenience, advantage or any amenity or any
necessity. The owner or occupier referred to in the provision is known as the Dominant
Owner and the land for the benefit of which the easementary right exists is called
Dominant Heritage. Whereas the owner upon whose land the liability is imposed is
known as the Serviant Owner and the land on which such a liability is imposed to do or
prevent something, is known as the Servient Heritage.
The term ‘easement’ is derived from the old Latin word ‘aisementum’ meaning ‘comfort,
convenience or privilege’ and evolved into ‘a legal right or privilege to use anything
other than one’s own’ from an early easement. It is the granting of a non-possessory
property interest that grants the easement holder permission to use the land of another
person. It is referring to the right that a man would sometimes have a license is a
personal right and granted to the individual doing something on the grantor’s immovable
property is not creating value on the property itself. This is strictly a permissive right,
which is the grantor‘s personal privilege. This does not impose any duties and
responsibilities on the individuals making the grant and is thus revocable except in such
conditions specifically provided for in the Act itself. When granted, the license has no
other effect of giving the licensee freedom to go to the land that would otherwise be
lawful.
Essentials of Easement
1. Dominant and Servient Heritage: For the enjoyment of right of easement, necessary
existence of two properties i.e. dominant and servient heritage is a must. This is
because as per the definition, it is the right exercised by the owner or occupier of one
land for enjoying the benefit of his/her land, over the land of some other person.
Dominant and servient heritage cannot be one. Thus, the existence of two properties
and that to be separate from each other is essential.
2. Separate owners: For exercising the right of easements, owners of the two properties
shall be different and not a single person
3. Beneficial Enjoyment: The object of easements is that the dominant owner enjoys it in
a way which includes express and implied benefits.
The easementary right exists only when two heritages are adjacent to each other. It is a
right in rem, which means a right available against the whole world. Easement as a right
is always annexed to the dominant tenement. It is a right of re-aliena which means a
right over a servient tenement and not on one’s own land.
Classification of Easement
Section 5 of the The Indian Easements Act, 1882 classifies the easements as follows–
1. Continuous or Discontinuous
Continuous easements are the one whose enjoyment may be continued without the
intervention of any human conduct or act of a man. There is no interference by a man
and it adds special quality to the property. While, on the other hand, the right of
easement for the enjoyment which an interference of a man is required is known as
discontinuous. In this kind of easement, it is necessary that a human act is done on the
servient heritage.
An apparent easement is one the existence of which can be seen through a permanent
sign. It can be visible by a careful examination and on reasonable foresightedness. It is
also known as express easement. An inspection is required to check the existence of a
right.
For example- There is a drain from A’s land to B’s land and from there it leads to an
open yard. This can be visible through a clear inspection and is an apparent easement.
Whereas, a non-apparent easement is just opposite of what apparent easement is. This
kind of easement is not visible through an inspection. There is no permanent sign as
such. The right is in use but is not visible and thus, is known as an invisible easement.
For example, A’s right annexed A's land to prevent B from building his own house.
Restrictive Easements
Section 7 specifies that the easements are restrictive of certain rights which are as
follows-
Profit a Prendre
According to The Indian Easements Act, 1882, profit a prendre is a part of the definition
of easements. An instance to explain the concept is, a right to take earth from the land
of the other person for making an earthenware is a profit a prendre. This is basically a
profit made out of the land of the other person. Other examples of profit a prendre-
● Right of fishery
● Right to take fruits of trees in the season
This is the right which is exercised on the land appurtenant to the dominant heritage.
Hence, there shall be the existence of two heritages i.e. dominant and servient. The
owner of the dominant heritage exercises this right on the property of the servient
owner. Profit a prendre is a right to do something on the land of servient tenement for
more beneficial enjoyment of the dominant heritage.
The easement can be acquired through express grant made by inserting the clause of
granting such a right in the deed of sale, mortgage or through any other form of transfer.
This involves expressing by the grantor his clear intention. If the value of the immovable
property is Rs.100 or above then it is compulsory for it to be in writing and duly
registered
Implied Circumstances
1. Easement of Necessity
Section 13 of the act deals that this consists of the circumstances where the owner or
occupier cannot use his property without exercising the right of easement over the
servient heritage. Thus, absolute necessity is the test and the convenience.
For example– X sells his land to Y for agricultural purposes. Here, Y cannot access his
land without passing through Z’s land (his neighbor). Thus, this is an easement of
necessity
2. Quasi Easements
For example– P’s right attached to Q’s house to receive air and light through a window
without any obstruction by his neighbour. This is continuous.
3. Prescriptive Easements
● Right must have been independently enjoyed without any agreement with the
servient owner,
4. Customary Easements
For example- people living in a particular city or town having a right to bury the dead in
a particular area or riparian right to use water.
Extinction of Easements
Section 37 to 47 of the The Indian Easements Act, 1882, provides for the mode of
extinction of easements.
In the situation where the grantor ceases to have any right in the servient tenement
because of some reason, then the right of easements ceases to exist as well. This has
been specified under Section 37 of the Act.
For e.g. - X grants a piece of land to Y for a period of 20 years in the year 1970. In the
year 1971, Y imposed an easement in favour of Z. In 1990 Y’s interest came to an end.
Thus, easementary right granted to Z ceases to end as well.
3. Extinction by release
Where in a situation the owner of the dominant heritage releases the right of easement
to the servient owner, the right ceases to exist. Such a release can be both expressly or
impliedly made.
For e.g. - P has a right to discharge water through the eaves to Q’s yard. P authorised
Q to construct a building to such a height as not be able to discharge water. Q builds it
and P’s right comes to an end.
4. Termination of necessity
For example- A grants a piece of land to B on which easement of necessity for B is the
right of way over A’s land. Later on, B purchases a part of the A’s land over which he
may pass to reach his own land. Here, the necessity has ended and so does the
easement.
5. Useless Easements
When easement is of such a nature that is not useful or becomes incapable of being
beneficial at any time or under any circumstances, then the right of easement ends.
6. Permanent change in the Dominant Heritage
When the nature of the dominant heritage changes permanently with increase in burden
on tenement, then the right of easement ceases to exist as the purpose of it was the
beneficial enjoyment of the dominant heritage.
For example- A’s house is located such that he has a right of way by passing through
B’s house. Later, due to the earthquake, B’s house got cut off and thus, the right of
easement ended.
When either of heritages gets destroyed, the easement ends as it is essential for two
properties to exist for exercising the right.
8. Unity by ownership
By unity of ownership it is indicated that when one person becomes the owner of both
the dominant and servient heritage then the right of easement terminates.
For instance, A has the right of easement over B’s property. Later on, A purchases B’s
property and becomes the owner of B’s property. In such a case, easement
extinguishes.
Another example which can be stated here to explain the concept is that A has a right of
easement over B’s land. In future A takes B’s land on rent; here A becomes the
occupier of B’s land. Thus, easement terminates.
SUSPENSION OF EASEMENTS
Section 49 of the Act provides that easement can be suspended under the following
circumstances-
An example which can be stated here to explain the concept is that A has a right of
easement over B’s land. In future A takes B’s land on rent; here A becomes the
occupier of B’s land. Thus, easement suspends.
2. When the servient owner becomes entitled to the possession of dominant heritage for
a limited interest, the easement is suspended.
Thus, where both the dominant and servient owner becomes one, easement is
suspended.
REVIVAL OF EASEMENTS
Section 49 of the Act provides that easement can be suspended under the following
circumstances-
An example which can be stated here to explain the concept is that A has a right of
easement over B’s land. In future A takes B’s land on rent, here A becomes the
occupier of B’s land. Thus, easement suspends.
2. When the servient owner becomes entitled to the possession of dominant heritage for
a limited interest, the easement is suspended.
Thus, where both the dominant and servient owner becomes one, easement is
suspended.
INTRODUCTION OF LICENSE
Property is perhaps the most important and the most complicated and extensive branch
of modern law. Under this field of law, the rights, claims, duties and obligations of the
parties involved with any kind of property become the subject of study.
Earlier, licence was described as the fact that a landowner communicated his consent
to another’s using his land; while at other times licence was described the legal
relationship whereby the other could use the land without being liable for trespass. In
present times, license is referred to as a validation by the owner of the land for the acts
of the licensee which would otherwise be committed unlawfully.
The traditional concepts of “bare” or “mere” licenses, licenses “coupled with an interest”
or “with a grant,” licenses “acted upon” or “executed,” and licenses “upon valuable
consideration” were used earlier. Most of these concepts assumed certain differences in
the legal consequences of various transactions, and therefore furnished a poor starting
point for determining what the legal consequences of a given transaction should be. It
also made it easy to overlook important license transactions which these phrases did
not suggest.
A factual classification of licenses which starts with the differences in the parties’
intentions will place in one group the transactions wherein the parties have
contemplated that the interests created should be revocable. But the transactions where
the parties have contemplated irrevocable interests require further subdivision. A large
number of licenses are not at all lacking in formality; they are called licenses solely to
distinguish them from leases. Another large group of licenses are so called because
they are oral; previous discussion has been confined almost entirely to these. Licenses
of another group present a different problem because they are written but unsealed. Still
other licenses are so called, although they are in writing and under seal, because they
lack technical conveyance language.
According to some scholars, the legal instrument of “License” in immovable properties
was developed to deal with the legal complications of lease and rental rights under
Indian law. In particular, this legal instrument was developed to enable property owners
to restrict lessees and evict them more easily. Still, many property owners that intended
to protect themselves by entering a leave and license agreement (i.e. a license
agreement to use an immoveable property for a certain purpose), find themselves
facing court decisions ruling that their agreement was in fact a lease agreement. Some
of the mistakes made by such property owners may be avoided. In this work, elucidated
the meaning of licence and how a licence is granted in India. In India, Indian Easements
Act of 1882 governs such transactions. Section 52, 53 and 54 are the relevant
provisions to understand the concept and grant of licence in India. The differentiations
between leases and licence along with lease and easement have also been made.
DEFINITION OF LICENSE
A licence may be oral in which case, terms, conditions and the nature of the licence,
can be gathered from the purpose for which the licence is granted coupled with the
conduct of the parties and the circumstances which may have led to the grant of the
licence. Every licence is governed by the provisions under the Easements act.
A licence does not confer an interest or property in the thing, and though it may be
coupled with a grant which conveys an interest in property, licence by itself does not
confer any interest. Where the parties entered into a partition agreement and divided
the property giving themselves certain rights, it would not amount to a licence. The
negative definition of licence under Indian law makes it necessary that before a right
can be shown to be a licence only, it must be proved not to be an easement or an
interest in the property.
KINDS OF LICENSE
Kinds of License:
It is a case of bare licence if a person is allowed to undertake an act on the land without
interfering with the nature of the property or taking any profits from it. Bare licences are
usually not assignable (transferable) and can be revoked by the property owner at any
time. When the licensee, acting on the licence, completes a permanent work and incurs
expense, the bare licence becomes irrevocable.
The provisions for granting licences are the same as for easements. When entering into
a Lease and Licence arrangement, two preliminary questions arise: who can grant and
how a licence is granted.
The first issue is addressed by Section 53 of the Indian Easements Act of 1882, which
provides that anyone may give a licence on the terms and to the extent that he may
transfer his interests in the land affected by the licence.To put it another way, a licence
cannot be granted or received if the licensor does not have a sufficient lawful interest in
the property.
The second question is addressed in S. 54 of the Indian Easements Act, 1882, & it
states that a grant of a licence may be express or implicit from the grantor's conduct,
and that an agreement that purports to create an easement but is ineffectual for that
purpose may be construed as a licence.This is an important definition. Property owners
should be aware that their actions may constitute a licence, even if there is no formal
licence agreement.
The power to grant a licence is outlined in Section 53. As per S.53, Anyone may give a
licence in the conditions and to the extent that he may transfer his interests in the
property affected by the licence, according to S.53.
The power to give a licence is mutually exclusive with the ability to transfer. Man can
give a licence to the extent that he can transfer his interest in the affected property
under certain conditions. A valid licence is given by a mortgagee or co-tenant who is
lawfully in sole possession and enjoyment of the property to do something that he could
do himself.[24] A licence can be granted by anyone who has the power to transfer
property, even if he is not the owner. Such a person can also revoke the licence. [25]
A grant of the right is granted by the grantor under Section 52. No licence may be
created without a grant in the broadest sense [26]. Only as long as the licensor retains a
right, title, and interest in the premises can a licence agreement continue to survive to
be effective. The agreement for licence comes to an end when the right to the title
expires. If the licensor is a tenant, his licence agreement expires when the tenancy
ends, and the licensee ceases to exist. [27]
● Form of Licence - Express or Implied:
As per section 54. A licence may be granted expressly or impliedly as a result of the
grantor's actions, and an agreement that purports to provide an easement but is
ineffectual for that purpose may function to generate a licence.
When a person is granted the right to use the premises without becoming entitled to
exclusive possession of them, or when the circumstances and conduct of the parties
show that all that was intended was to grant the grantee a personal privilege with no
legal interest, a licence is notionally created.When a licence is combined with a
compulsorily registrable grant of immovable property or an interest in immovable
property, it must be in written or registered.
● Express License:
An express licence is one that in direct terms allows the conduct of a certain act, such
as a public authority-issued licence to keep a tavern. Express licences apply to more
specific scenarios in which permission has been given to a specific person. An example
is when the owner invites guests to his home for dinner or to stay in one of his rooms.
Any re-entry after that period without further permission would be considered trespass.
● Implied License:
When a licence is just a bare licence, the fact that it was acquired for a specified period
of time has no bearing on the licensor's right to revoke it at any moment. The licensor
has the power to withdraw a licence at any time, and this power is not conditional on the
licensor providing reasonable notice or sufficient time to the licensee.
The right of a licensee to receive reasonable notice before revocation and the right of
the licensor to revoke a licence are not intertwined in the sense that the licensor cannot
use his right without first issuing such notice.
1. Where the grantor loses all interest in the property affected by the licence due to a
circumstance that occurred before the licence was granted.
2. When the licensee releases it to the grantor or his representative, either expressly or
impliedly;
3. When it has been given for a limited period of time or acquired on the condition that it
would become void if a particular act is performed or not , and the period has expired or
the conditions have been met;
5. Where the Licensee acquires complete ownership of the property affected by the
licence;
6. Where the licence is provided for a specific purpose that is accomplished,
abandoned, or rendered impracticable;
7. Where the license is issued as holding a specific office, occupation, or character, and
that office, occupation, or character ceases to exist;
8. If the licence is not used as such for a continuous period of twenty years and the
cessation is not in accordance with a contract between the grantor and the licensee;
9. In the case of an accessory licence, when the interest or right to which it is attached
expires.
CASES
The Court held in Associated Hotels of India Ltd. v. R.N. Kapoor, that a licence is a
document that allows a licensee to use a property under specified terms and conditions
while the property remains in the ownership of the true owner. As a result, the legal
possession of the property remains with the owner, and the licensee is only granted a
licence to use the owner's property for a certain purpose. In the lack of such a licence,
however, the licensee's actions on the property would be illegal.
Delta International Limited vs. Shyam Sundar Ganeriwalla & Another, The essential test
for determining whether a document provides a lease or a licence is to determine the
parties' intention; keep in mind that in circumstances when exclusive possession is
provided, the boundary between lease and licence is very thin.
DIFFERENCE BETWEEN LICENSES AND EASEMENTS
License Easement
The Indian Easements Act, provides for the whole concept of right of easements and its
regulation in India. Easement as defined under Section 4 of the Act is a right enjoyed by
the owner of the dominant heritage over the heritage of servient owner for the beneficial
enjoyment of his own land. It not only defines what actually easements consist of but
also provides its classification. Easements can be prescriptive, customary, quasi and of
necessity.
Thereafter, modes of acquiring easements have been provided under Section 7 of the
said Act according to which it can be acquired through an express grant or is in certain
circumstances considered to be an implied right. If easement is to be acquired through
the express grant then such a clause has to be specifically mentioned in the deed of
sale, mortgage or any other deed in accordance with the mode of transfer. Easement is
a right in rem, that is, it is available against the whole world. It can be subject to
limitations as well and can be restrictive too. Easements can be both positive and
negative. Whereas, on the other hand licenses can only be positive in nature
Further, the Act talks about the provisions regulating the suspension, extinction and
revival of the easements. Also, how easements is different from licenses has been
discussed. The article also explains the concept of licenses along with its essentials.
License can be revocable as mentioned in the Act and irrevocable as mentioned under
Section 60 of the Act. They can also be transferred according to Section 56 of the Act. It
is a right in personam which is not available against the whole world but is granted
personally.
BIBLIOGRAPHY & WEBLIOGRAPHY
www.blog.ipleaders.com
www.Legalserviceindia.com
www.studoc.com