Extinction, Suspension and Revival of Easements

In one line

An easement ends when the grantor's own right ends, when it is released, revoked, spent, unnecessary, useless, destroyed, united in one owner, or left unused for twenty years.

In exam wording: sections 37 to 48 set out the modes by which an easement is extinguished; section 49 provides for its suspension; and section 51 for its revival.

The modes of extinction

Section 37: dissolution of the grantor's right

Where, from a cause which preceded the imposition of the easement, the person who imposed it ceases to have any right in the servient heritage, the easement is extinguished.

This is section 8 catching up with the grant. A person could impose an easement only to the extent of his own interest, and when that interest fails from a pre-existing cause, the easement fails with it.

The exception: nothing in the section applies to an easement lawfully imposed by a mortgagor in accordance with section 10.

The Act's illustrations:

(a) A transfers Sultanpur to B on condition that he does not marry C. B imposes an easement. B then marries C. B's interest ends, and with it the easement.

(b) A lets Sultanpur to B for thirty years. B imposes an easement in favour of C, who enjoys it for twenty-nine years. B's interest ends, and with it C's easement, notwithstanding the long enjoyment.

(c) A and B are tenants of C with permanent transferable interests. A imposes an easement on his holding in favour of B, who enjoys it for twenty years. A's rent falls into arrear and his interest is sold. B's easement is extinguished.

(d) A mortgages Sultanpur to B and lawfully imposes an easement under section 10. The land is sold to D in satisfaction of the mortgage debt. The easement is NOT extinguished.

Illustration (b) is the one worth marking: even twenty-nine years of enjoyment does not save an easement whose grantor's own interest has come to an end.

Section 38: release

An easement is extinguished when the dominant owner releases it, expressly or impliedly, to the servient owner. The release can be made only in the circumstances and to the extent in and to which the dominant owner can alienate the dominant heritage, and may be of part only of the servient heritage.

Explanation I: implied release arises:

(a) where the dominant owner expressly authorises an act of a permanent nature on the servient heritage whose necessary consequence is to prevent his future enjoyment, and the act is done under that authority; or

(b) where a permanent alteration is made in the dominant heritage of such a nature as to show that the dominant owner intended to cease to enjoy the easement in future.