Easement legal overview

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According to section 4 of the Easements Act 1882, easement are formed when a property owner expresses writing in a legal document. While an oral agreement for the making of an easement may be made, it does not ever hold up in court. This is related to as an “implied easement,” and often occurs when two neighbours simply agree that a driveway or other access is important to one property across the other, with no legal documentation. This can become a difficult situation in the event the crossed property is sold to someone who does not wish to grant easement rights under an assumed easement and is not always held up in court.

For the nature of an easement to be legally required, the document must be filed with the County Recorder. Defining the specific location, nature, and purpose of an easement in a deed or other legal document constitutes an “express easement.”


An easement is a property right that provides its holder an interest in land that's owned by someone else. It's common for people to lack a clear knowledge of easements and the many legal problems that can arise in their work, interpretation, and implementation. Luckily, you've come to the right place. This article will give some basic data about easements including how easements are created and transferred. In this article, you can also find out about the rights and remedies granted by easements, and an overview of the legal matters consider when it comes to easements.



Making of an Easement:-

Easements are normally created by conveyance in a deed or some other written document such as a will or contract. Planning an easement needs the same rules as the transferring or creating of other interests in land, which typically needs: a written instrument, a signature, and proper delivery of the document. In limited situations, a court will create an easement by assuming its existence based on the circumstances.

Two common easements created by the association are easements of necessity and easements implied from quasi-easements. Easements of necessity are typically implied to give access to a landlocked part of a property. Easements intended from quasi-easements are based on a landowner's prior utilization of part of his or her property for the advantage of another part of his land. Other methods of establishing easements include customary use (the routine, opposing use of another's land), estoppel, custom, public trust, and conviction.



Types of Easement:-

There are several types of easement, each of which gives the holder special use of the property. The type of easement depends on the type of property involved, the proportion of the parties, and the particular use for which the easement is granted.


  1. Utility Easement

A utility easement is perhaps the most popular type and it involves giving easement rights to a utility company or the local municipality (city, county, or state) in general. These easements are typically defined in the property deed and add a map representing the state to which the utility or municipality is allowed. In the case of a utility easement, the property owner can use the property however they choose, as long as they do not conflict with the service company or municipality’s use.


  1. Private Easement

Private easements happen when a property owner sells an easement to an individual. This may be for several causes, including giving a neighbour driveway access, or sharing a sewer line or well with a neighbour. Before giving a private easement, or purchasing a property that has this type of easement, the property owner or possible buyer must review the documents carefully, as a private easement often limits what the property owner can do on or around the designated area. For example, a property owner who has granted a solar path easement to his neighbour may not be permitted to plant trees or construct buildings, either of which would block sunlight, next to the easement


  1. Easement by Necessity

Situations often arise when one property owner must cross another’s land for a significant purpose, such as accessing their land and home. A landowner cannot be denied access to his home or property, and this is usually taken into account in the deeds when the land is originally divided. Although necessity creates a right to an easement, it is imperative to ensure the exact location of an easement by necessity is listed on the deed.


  1. Prescriptive Easement

A prescriptive easement occurs when someone gets easement over another’s land for a specific purpose. This differs from easement by obligation as the person acquiring the easement only uses the property for a set amount of time. Each state has specific statutes that determine the length of time a person can use a prescriptive easement, and whether the person holding the easement is needed to pay a part of the property taxes on the land doing done. A landowner may simply grant support for the other individual to use the property on a limited basis, but if access is denied, the individual must file a claim of easement by prescription, allowing the court to obtain a ruling.


  1. Public Easement

A public easement grants a specifically defined area of land for public use. An example would be the giving of public access to a part of the landowner’s property for a park or touring.



Rights and Solutions under an Easement:-

As a general rule, an easement owner has a right to do "whatever is reasonably available or necessary to enjoy fully the purposes for which the easement was given," as long as he or she does not place an extreme load on the servient land. Conversely, the owner of the servient land may make any use of that land that does not unnecessarily conflict with the easement holder's use of the easement. What constitutes an undue burden depends upon the facts of each position. The concept of reasonableness includes consideration of changes in the surrounding area, as well as technological developments.

If a court decides that a servient estate is unduly burdened by extreme use of the easement, the servient estate holder has several potential legal remedies. These include court orders containing the dominant owner to an appropriate enjoyment of the easement, monetary damages when the easement holder exceeds the scope of his or her rights and damages the servient estate, and in some cases extinguishment of the easement. Moreover, solutions exist for interference by the servient owner. Check with an easement is a form of trespass, and courts usually order the removal of an obstruction to an easement. If interference with an easement causes a decrease in the value of the dominant estate, courts may also award compensatory losses to the easement holder.




Concerning the cases of an essential right of light the Courts usually do not interfere by way of injunction where the courts find that the obstruction of information is very slight and where the injury provided is trifling, except in such rare and unusual cases. Here again, it is necessary to understand that no loss is substantial unless it actually reduces the value of the dominant heritage, or interferes materially with the physical comfort of the plaintiff, or stops him from carrying on his usual business in the powerful heritage as beneficially as he had done prior to instituting the suit.

In India the Court has an option: It may or may not issue an order depending on the fact- where the injury is such that pecuniary compensation would not provide enough relief.

In some cases, a mandatory injunction will also be given. Court will grant such injunction where a man, who has a right to light and air which is barred by his neighbor’s building, brings his suit and demands for an injunction as soon as he can after the start of the building, or after it has become clear that the intended building will interfere with his light and air. But the court should be provided that a large loss of comfort has been caused and not a mere fanciful or visionary loss.

 If the plaintiff has not brought his suit or used for an injunction at the earliest occasion and has waited till the building has been finished, and then asks the Court to have it removed, a mandatory injunction will not usually be given.





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