Kinds of Easements

The Act's illustrations:

(a) A is tenant of B's land under a lease with twenty years unexpired and power to transfer his interest. A may impose an easement to continue during the lease or for any shorter period.

(b) A is tenant for life with remainder to B absolutely. A cannot, without B's consent, impose an easement which will continue after his life interest ends.

(c) A, B and C are co-owners. A cannot, without the consent of B and C, impose an easement on the land or any part of it.

(d) A and B are lessees of the same lessor, A of field X for five years and B of field Y for ten. A's interest is transferable; B's is not. A may impose on X, in favour of B, a right of way terminable with A's lease.

Illustration (d) is worth pausing on, because it shows the section working on both sides: what limits the grant is A's power to transfer, since A owns the servient land, and B's inability to transfer his own interest does not prevent him receiving the benefit.

Section 9: the servient owner's further grants

Subject to section 8, a servient owner may impose on the servient heritage any easement that does not lessen the utility of the existing easement. But he cannot, without the consent of the dominant owner, impose an easement which would lessen that utility.

The servient owner is not frozen. He has given away a limited right and keeps everything else, and he may go on dealing with his land so long as he does not cut down what he has already granted.

The Act's illustrations:

(a) A has, for his mill, a right to the uninterrupted flow of B's stream from sunrise to noon. B may grant C the right to divert the water from noon to sunset, provided A's supply is not diminished.

(b) A has a right of way over B's land. B may grant C the right to feed his cattle on the grass growing on the way, provided A's right of way is not obstructed.

Section 10: lessor and mortgagor

Subject to section 8:

• a lessor may impose on the leased property any easement that does not derogate from the rights of the lessee as such;
• a mortgagor may impose on the mortgaged property any easement that does not render the security insufficient.

Neither may, without the consent of the lessee or mortgagee, impose any other easement, unless it is to take effect on the termination of the lease or the redemption of the mortgage.

The Explanation carries the same test as section 66 of the Transfer of Property Act, and the figures are identical: a security is insufficient unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due.

Section 11: the lessee's limits

No lessee or other person having a derivative interest may impose on the property held by him as such an easement to take effect after the expiration of his own interest, or in derogation of the right of the lessor or the superior proprietor.

A derivative interest is one carved out of a larger one, such as a lease or a sub-lease. The section states in two limbs what section 8 states in principle: a lessee cannot burden the land beyond his own term, and cannot cut down the interest of the person above him.

Section 12: who may acquire an easement

By the owner, for the beneficial enjoyment of the property for which the right is created, or on his behalf by any person in possession of it.

By one of several co-owners. One of two or more co-owners may, as such, with or without the consent of the others, acquire an easement for the beneficial enjoyment of the property.

Contrast section 8 illustration (c) sharply, because the pair is examined together. A co-owner cannot burden the co-owned land without his co-owners' consent, but he may acquire an easement for it without them. The asymmetry is deliberate: acquiring benefits everyone, burdening harms them.

The lessee's disability. No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease. A tenant already has the use of the leased land under the lease; he cannot convert that into a permanent easement for the benefit of his own neighbouring property.

A worked example

Sanjay owns a plot at Yavatmal. Tabassum owns the plot next to it, which she has leased to Uday for eight years, with power to transfer his interest. Vidya holds a mortgage over Tabassum's plot.

Uday grants Sanjay a right of way over the leased plot for twenty years. Under section 8 and illustration (a), Uday may impose an easement only for the period of his lease or a shorter period. The grant is good for the remainder of his eight years and no longer.

Tabassum grants Sanjay a right of way to begin now. Under section 10 she may impose an easement that does not derogate from Uday's rights as lessee. If it would interfere with his use, she needs his consent, unless the easement is to take effect on the termination of the lease.

She also needs to think about Vidya. Under section 10 she may impose an easement that does not render the security insufficient, and the Explanation makes the property insufficient unless its value exceeds the debt by one-third, or by one-half if it consists of buildings.

Sanjay already has a right of light over Tabassum's plot. She now grants a right of way over the same strip to a third person. Under section 9 she may, provided it does not lessen the utility of Sanjay's right of light. Illustrations (a) and (b) are exactly this pattern.

Sanjay's plot is co-owned with his brother, and Sanjay alone acquires a right of way for it. Valid under section 12: one co-owner may acquire an easement for the beneficial enjoyment of the property with or without the others' consent.

Sanjay alone tries to grant a right of way over the co-owned plot. Invalid without his brother's consent, on section 8 illustration (c).

Uday, who owns a shop across the road, claims a right of way over the plot he leases, for the benefit of that shop. Barred by the last paragraph of section 12: a lessee cannot acquire an easement over the property comprised in his lease for the benefit of other property of his own.

Classifying the rights. Sanjay's right of light is continuous and non-apparent if nothing on the ground shows it; his right of way is discontinuous and, if there is a made track, apparent.

What it does NOT mean

Continuous does not mean constantly used. It means enjoyment does not require the act of man.

Apparent does not mean visible to anyone. The test is a permanent sign visible on careful inspection by a competent person, so a buried drain can be apparent.

A servient owner is not frozen. Under section 9 he may grant further easements that do not lessen the utility of the existing one.

A lessor is not powerless. He may grant easements that do not derogate from the lessee's rights, or that take effect when the lease ends.

A mortgagor is not powerless either, provided the security stays sufficient on the one-third and one-half test.

A lessee cannot grant beyond his term, nor in derogation of the lessor's rights.

A co-owner's position is asymmetric: he may acquire alone, but may not burden alone.

A lessee cannot acquire an easement over the leased land for his own other property.

Distinctions

Quick revision

• s.5: continuous (no act of man) against discontinuous (needs the act of man); apparent (a permanent sign visible on careful inspection by a competent person) against non-apparent.
• Light is continuous; a way is discontinuous; an aqueduct or drain is apparent; a right to prevent building is non-apparent.
• The classification matters because s.13 quasi-easements require the right to be continuous and apparent.
• s.8: an easement may be imposed only to the extent the grantor may transfer his interest in the servient heritage. A life tenant cannot bind the remainderman; a co-owner cannot bind his co-owners.
• s.9: a servient owner may grant further easements that do not lessen the utility of the existing one.
• s.10: a lessor may grant what does not derogate from the lessee's rights; a mortgagor what does not render the security insufficient, the one-third, or one-half for buildings, test applying.
• s.11: a lessee may not impose an easement beyond his own interest or in derogation of the lessor's rights.
• s.12: an easement may be acquired by the owner, or on his behalf by a person in possession; one co-owner may acquire alone; and a lessee may not acquire an easement over the leased property for his own other property.

Test yourself

1. Distinguish continuous from discontinuous easements, with an example of each. A continuous easement is one whose enjoyment is or may be continual without the act of man, such as a right to light. A discontinuous easement needs the act of man for its enjoyment, such as a right of way.

2. Is an underground drain an apparent easement? It can be. The test is a permanent sign which, on careful inspection by a competent person, would be visible to him, and illustration (c) treats a drain discoverable by a person conversant with such matters as apparent.

3. To what extent may a life tenant impose an easement? Only for the duration of his own interest. Under section 8 and illustration (b), he cannot without the remainderman's consent impose an easement which will continue after his life interest ends.

4. May a servient owner grant another easement over the same land? Yes, under section 9, provided it does not lessen the utility of the existing easement. He cannot do so without the dominant owner's consent if it would.

5. When is a mortgaged property's security "insufficient" for section 10? Unless its value exceeds by one-third the amount for the time being due on the mortgage, or, where it consists of buildings, exceeds it by one-half.

6. Can one co-owner acquire an easement for the co-owned land without the others? Yes. Section 12 permits one of two or more co-owners, as such, to acquire an easement for the beneficial enjoyment of the property with or without the consent of the others. He may not, however, impose one without their consent.

7. Can a tenant acquire an easement over the land he rents, for the benefit of a shop he owns nearby? No. The last paragraph of section 12 forbids a lessee from acquiring, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.