You
like a certain property and want to purchase it. But the only access to
it is via a driveway crossing the next property. Will a driveway have
an impact on your potential purchase? A cable television company is
seeking to install its lines along the existing electrical poles. Should
the company negotiate with the Electricity Board or with each of the
owners along whose property the lines run?
Both these scenarios mentioned in the introduction of this article
involve an Easement, a right that gives the property owner a
'non-possessory' interest in another person's property. An Easement has
an impact on all types of real estate transactions, and is utilised for
conservation and historic preservation purposes. Despite its prevalence,
many people lack a clear understanding of this property interest, and
numerous problems occur in the drafting, interpretation and
implementation of an Easement.
Nature, Creation and Scope
An Easement is a right given to an owner of a property to use an
adjacent property which he does not possess, but does not allow him to
occupy it. For instance, if X owns a property and grants Y a
right-of-way on the road across the property, Y has an Easement in X's
property. Y may use the road, but cannot stop others from also using it.
However, X could exclude everyone except Y from crossing his property.
Land
burdened by an Easement is called a 'servient estate', and the land benefited by the Easement is called the 'dominant estate'. If an
Easement benefits a particular piece of land, it is 'appurtenant' to the
land. And, if an Easement benefits an individual not as an owner of a
particular piece of land, then it is termed 'in gross'. Most Easements
are affirmative, which means that they authorise use of another person's
land. According to the Indian Easements Act, the inhabitants of a
building enjoying the access and use of air and light continuously for
over 20 years have a right to them without any condition or restriction.
An Easement by virtue of custom is a legal right acquired by the power
of law through continuous use of a land over a long period of time.
Therefore, the right of way continues to exist by grant, prescription or
by virtue of custom.
Easements are usually created by conveyance
in a deed or other written documents such as a will or contract. The
creation of an Easement requires the same formalities as the transfer or
creation of other interests in land. The requirements are as follows: a
written instrument, a signature and proper delivery of the document. In
limited circumstances, the court will imply an Easement as a matter of
law. Two common Easements created by an implication are an Easements of
necessity and an Easement implied from a quasi-easement. An Easement of
necessity is typically implied to provide access to a landlocked piece
of property, whereas, an Easement implied from a quasi-easement is based
on a landowner's prior utilisation of part of his property
(quasi-servient estate) for the benefit of another portion of his land
(quasi-dominant estate). This quasi-easement may become an implied one
once either the quasi-servient land or the quasi-dominant land is
transferred to a third party. Other methods of establishing Easements
include prescriptive use (i.e. by the routine, adverse use of another
person's land), estoppels (a legal doctrine involving reliance on the
words or actions of another person), custom, public trust, and
condemnation.
After an Easement is created, questions often arise concerning its
location, dimensions and scope. These questions should be resolved on a
case-by-case basis, and are impacted by the method of the Easement's
creation. Questions involving matters covered by the written document,
or the prior use, or the necessity that created the Easement can be
resolved relatively easily. However, the written documents to create an
Easement are often vague or incomplete, and inferences from prior use or
necessity are not precise. In such a case, the applier's intent is
uncertain, and must be construed by the court.
As a rule, an
Easement holder has the right to do "whatever is reasonably convenient
or necessary in order to enjoy fully the purpose for which the Easement
is granted" as long as he does not unduly burden the servient land.
Conversely,
the owner of the servient land may also make use of that land that does
not unduly interfere with the Easement holder's right. What constitutes
an undue burden depends upon each situation. For instance, an increase
in traffic over an Easement giving access to a beach resort may not
necessarily constitute an undue burden, but traffic resulting from
changing a dominant estate from private use to a commercial business
might constitute an additional burden on the servient estate.
The reasonable use of an Easement is not fixed and may include a
consideration of changes in the surrounding area with technological
developments. However, if the court determines that the servient estate
is unduly burdened by the unreasonable use of an Easement, the servient
estate holder has several remedies. These include injunctions to
restrict the dominant owner to an appropriate enjoyment of the Easement,
monetary damages when the Easement holder exceeds the scope of his
rights injuring the servient estate, and in some instances,
'extinguishment' of the Easement. Likewise, there are remedies for
interference by the servient owner. Interference with an Easement is a
form of trespass, and the court frequently enjoins the obstruction of an
Easement and may order the removal of encroaching structures at the
servient owner's expense. If the interference with an Easement causes
diminution in the value of the dominant estate, the court may also award
compensatory damages to the Easement holder.
Transferability and Termination of Easements
The transferability of an Easement must also be considered when
undertaking a real estate transaction. An Easement's transferability
depends upon its nature (i.e. whether it is appurtenant or in gross). In
general, an Easement appurtenant is transferred with the dominant
property even if this is not mentioned in the transferring document.
But, the document transferring the dominant estate may express that the
Easement shall not pass with the land. Because non-commercial Easements
in gross are treated as a right of personal enjoyment for the original
holder, they are generally not transferable.
An individual granting an Easement should avoid any legal problem by
expressing that the easement is permanent and utilising appropriate
words of inheritance. Although permanent Easements are the norm, they
can be terminated in numerous ways. For instance, an Easement may be
created for a limited or conditional duration. Easements of a limited
duration are commonly used to provide temporary access to a dominant
estate. An Easement may also be terminated when an individual owning the
dominant estate purchases the servient estate, or when the holder of
the Easement releases his right to the owner of the servient estate.
This release must be given in writing. Abandonment of an Easement can
also extinguish it, but as a general rule, the non-use of an Easement
does not constitute its abandonment. The misuse or the sale of a
servient estate can also terminate an Easement.
Source : http://www.chennairealty.biz/legal_tax.php
