Extinction, Suspension and Revival of Easements

Explanation II is the important one: mere non-user is NOT an implied release. Non-user extinguishes only through section 47, and only after twenty years.

The Act's illustrations:

(a) A, B and C are co-owners of a house with an easement. A alone releases it. The release is effectual only as against A and his legal representative.

(b) B assigns the dominant house to C, then purports to release the easement. The release is ineffectual, because B no longer holds the dominant heritage.

(c) A, entitled to discharge eavesdroppings into B's yard, expressly authorises B to build to a height that will interfere. B builds. A's easement is extinguished to the extent of the interference.

(d) A, having an easement of light to a window, builds up that window with bricks and mortar so as to manifest an intention to abandon permanently. Impliedly released.

(e) A permanently alters his projecting roof so as to discharge the rainwater elsewhere. Impliedly released.

Sections 39 to 42: the easement runs out

Section 39: revocation. Extinguished when the servient owner, in exercise of a power reserved in that behalf, revokes it.

Section 40: expiry or dissolving condition. Extinguished where the easement was imposed for a limited period, or acquired on condition that it should become void on the performance or non-performance of a specified act, and the period expires or the condition is fulfilled. This is section 6 running its course.

Section 41: termination of necessity. An easement of necessity is extinguished when the necessity comes to an end.

The illustration: A grants B a field inaccessible except over A's adjoining land. B afterwards purchases a part of that land over which he can pass to his field. The right of way is extinguished.

Note how neatly this pairs with section 13. An easement of necessity is created by necessity and dies with it, which is why it is measured by the necessity throughout its life.

Section 42: useless easement. Extinguished when it becomes incapable of being at any time under any circumstances beneficial to the dominant owner. The test is strict: not merely presently useless, but incapable of ever being beneficial.

Sections 43 to 46: changes to the heritages

Section 43: permanent change in the dominant heritage. Where, by a permanent change in the dominant heritage, the burden on the servient heritage is materially increased and cannot be reduced by the servient owner without interfering with the lawful enjoyment of the easement, the easement is extinguished.

Section 44: permanent alteration of the servient heritage by superior force. Extinguished where the servient heritage is permanently altered by superior force, meaning an act of nature or other irresistible cause rather than anyone's act.

Section 45: destruction of either heritage. Extinguished when either the dominant or the servient heritage is completely destroyed.

Section 46: unity of ownership. Extinguished when the same person becomes entitled to the absolute ownership of the whole of both the dominant and the servient heritages.

Section 46 is the easement version of merger. A man cannot have an easement over his own land, so when both plots come to him absolutely, the right disappears. Note the two words that limit it: absolute ownership of the whole of both. If he owns one absolutely and the other for life, or owns only part, the easement survives.

Section 47: non-enjoyment

This is the most examined of the extinction sections.

A continuous easement is extinguished when it totally ceases to be enjoyed as such for an unbroken period of twenty years.

A discontinuous easement is extinguished when, for a like period, it has not been enjoyed as such.

When the period starts, and the two differ:

• continuous: from the day its enjoyment was obstructed by the servient owner, or rendered impossible by the dominant owner;
• discontinuous: from the day it was last enjoyed by any person as dominant owner.

The proviso. In the case of a discontinuous easement, if the dominant owner within that period registers a declaration of his intention to retain the easement, it is not extinguished until twenty years have elapsed from the date of registration.

Enjoyment of the wrong kind does not count. Where an easement can lawfully be enjoyed only at a certain place, at certain times, between certain hours, or for a particular purpose, enjoyment at another place, at other times, between other hours, or for another purpose does not prevent extinction.

Four excuses that do not help, and they are worth listing because each looks like a good answer: that nobody was in possession of the servient heritage; that the easement could not be enjoyed; that a right accessory to it was enjoyed; or that the dominant owner was not aware of its existence or enjoyed it in ignorance of his right.

Section 48: accessory rights are extinguished when the easement to which they are accessory is extinguished.

Sections 49 to 51: suspension and revival

Section 49: suspension. An easement is suspended when the dominant owner becomes entitled to possession of the servient heritage for a limited interest, or when the servient owner becomes entitled to possession of the dominant heritage for a limited interest. It is suspended and not extinguished, because unity is only temporary and partial; section 46 requires absolute ownership of the whole.

Section 50: the servient owner cannot require continuance, and there is provision for compensation for damage caused by extinguishment or suspension.

Section 51: revival. An easement extinguished under section 45, destruction of either heritage, revives when the destroyed heritage is restored by alluvion within twenty years, or when the destroyed servient heritage was a building and is rebuilt on the same site within twenty years. An easement suspended under section 49 revives when the cause of suspension is removed.

A worked example

Hiralal has a right of way over Ismail's field to reach his house, and a right of light through a window.

Ismail's own interest was a lease that has now expired. Under section 37 the easement he imposed is extinguished, and illustration (b) shows that even twenty-nine years of enjoyment would not save it.

Hiralal bricks up the window permanently. Under section 38 Explanation I(b) and illustration (d), the right to light is impliedly released.

Hiralal simply stops using the way for twelve years. Nothing happens. Explanation II to section 38: mere non-user is not an implied release, and section 47 needs twenty years.

He stops using it for twenty-one years. The right of way is discontinuous, so under section 47 it is extinguished, the period running from the day it was last enjoyed. Had he registered a declaration of his intention to retain it within that period, he would have had twenty years from registration.

He used the way during those years, but only to reach a different field and for a different purpose. That does not save it: enjoyment for another purpose does not prevent extinction.

He says he did not know the right existed. No help. Ignorance of the right is one of the four circumstances the section expressly says does not prevent extinction.

Hiralal buys Ismail's field outright. Under section 46 the easement is extinguished by unity of ownership, both heritages being absolutely his.

He instead takes a five-year lease of the field. Under section 49 the easement is suspended, not extinguished, and under section 51 it revives when the lease ends.

A flood permanently washes the field away. Section 45 extinguishes the easement; under section 51 it revives if the land is restored by alluvion within twenty years.

Hiralal converts his house into a factory, so that the way now carries constant heavy traffic. If that permanent change materially increases the burden and it cannot be reduced without interfering with the lawful enjoyment, section 43 extinguishes the easement altogether.

He buys a strip giving him direct access to the road, the way having been an easement of necessity. Section 41 and its illustration: the necessity has ended, and so has the easement.

What it does NOT mean

Mere non-user is not release. Explanation II to section 38.

Twenty years of non-user is required, and even then only under section 47.

Ignorance, impossibility, vacancy of the servient heritage, and enjoyment of an accessory right are all irrelevant to extinction under section 47.

Enjoyment of the wrong kind does not preserve the easement.

Unity of ownership must be absolute and of the whole. Anything less is suspension under section 49.

A useless easement is not extinguished merely because it is presently useless. It must be incapable of being beneficial at any time under any circumstances.

One co-owner cannot release for the others. Illustration (a) to section 38.

A person who has parted with the dominant heritage cannot release. Illustration (b).

Destruction is not always final. Section 51 provides for revival within twenty years.

Distinctions

Quick revision

• Modes of extinction: s.37 grantor's right dissolved; s.38 release, express or implied; s.39 revocation under a reserved power; s.40 expiry or dissolving condition; s.41 end of necessity; s.42 uselessness; s.43 permanent change in the dominant heritage materially increasing the burden; s.44 superior force altering the servient heritage; s.45 destruction; s.46 unity of ownership; s.47 twenty years' non-enjoyment; s.48 accessory rights follow.
• Mere non-user is not an implied release (Explanation II to s.38).
• s.47: twenty years, running from obstruction or impossibility for a continuous easement, and from last enjoyment for a discontinuous one; a registered declaration buys twenty more years for a discontinuous easement; enjoyment at another place, time or purpose does not count; and vacancy, impossibility, accessory enjoyment and ignorance are all no excuse.
• s.46 requires absolute ownership of the whole of both heritages; anything less is suspension under s.49.
• s.51: revival after destruction if restored by alluvion, or a servient building rebuilt on the same site, within twenty years; and revival of a suspended easement when the cause is removed.

Test yourself

1. Does non-user by itself extinguish an easement? Not as a release. Explanation II to section 38 says mere non-user is not an implied release. It extinguishes only under section 47, after an unbroken period of twenty years.

2. From what date does the twenty years run? For a continuous easement, from the day its enjoyment was obstructed by the servient owner or rendered impossible by the dominant owner. For a discontinuous easement, from the day it was last enjoyed by any person as dominant owner.

3. Name three circumstances that do not prevent extinction under section 47. That nobody was in possession of the servient heritage; that the easement could not be enjoyed; that an accessory right was enjoyed; and that the dominant owner did not know of the easement or enjoyed it in ignorance of his right.

4. When does unity of ownership extinguish an easement? When the same person becomes entitled to the absolute ownership of the whole of both the dominant and the servient heritages. A limited interest only suspends the easement under section 49.

5. A grants B a way of necessity, and B later buys land giving him his own access. What happens? The easement of necessity is extinguished under section 41, because the necessity has come to an end, and the illustration is exactly that case.

6. Give two examples of implied release. Where the dominant owner expressly authorises a permanent act on the servient heritage whose necessary consequence is to prevent his future enjoyment and the act is done; and where he makes a permanent alteration in the dominant heritage showing an intention to cease enjoying, such as bricking up a window over which he had a right of light.

7. Can an extinguished easement ever revive? Yes. Under section 51, one extinguished under section 45 revives if the destroyed heritage is restored by alluvion within twenty years, or if a destroyed servient building is rebuilt on the same site within twenty years; and a suspended easement revives when the cause of suspension is removed.

8. A tenant grants an easement and his lease then expires. What becomes of the easement? It is extinguished under section 37, since the person who imposed it has ceased to have any right in the servient heritage from a cause preceding the grant. Illustration (b) shows this even after twenty-nine years of enjoyment.