A Guide to Easementary Rights

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By Abishek Kumar

The term ‘easementary right’ may seem peculiar to you, but let me tell you, not all real estate experts are familiar with the term. The normal course of a real estate transaction is usually focused on the buying or selling of a property, the related taxes, and other legal formalities. Easementary right is a privilege that’s a mile apart from these transactions. The concept goes thus: a person who owns land doesn’t just enjoy the rights to his or her land, but is also given a right over an adjacent property that’s not under his or her possession.

How Do Easement Rights Arise?

The imposition, acquisition, and transfer of easement rights take place by:

Prescription, where rights are obtained by the incessant assertion of the right, open, and adverse use over a statutory period of time.

Custom, where rights are obtained not legally, but by using a land or property for various means in a mannered custom. Example: When a kid uses someone’s backyard as a quick route to reach the road, uninterrupted by the owners of the land, it creates a permanent right of way, essentially an easement

Grant, where easement rights are created via legal documents, recorded with the recorder of the deeds, and is commonly referred to as a written express grant of easement.

Necessity, when it is necessary to the reasonable use of land or property. However, necessity alone cannot stand as a sufficient claim; claims can be made if the transfer or partition necessitates it.

Essentials of An Easement

  • The existence of a dominant and servient property, where the dominant and the servient must be different persons
  • Accommodation of the dominant tenement in the easement
  • Possession of easementary rights for beneficial enjoyment of the dominant tenement
  • The easementary right should entitle the dominant owner to do and continue to do something, or prevent and continue to prevent something being done, in or upon, or in respect of servient treatment
  • The ‘something done’ should be capable of forming the subject matter of a grant.

Quick Know-Hows

Easement rights are backed by the law and have several conditions attached to it. Getting acquainted with these basic know-hows can prove beneficial.

  • Creation of an easement doesn’t necessarily mean the transfer of the land or property. Similarly, surrendering easementary rights does not entail transfer.
  • An easement can be made, altered, and released, but not be modified or changed orally.
  • With an exception to easements by prescription and custom, easements must be in writing.
  • A lot of people aren’t aware that the dominant and servient owners can exercise certain rights to maintain and preserve an easement.
  • Maintain clear and sufficient documents, deeds, and grants related to the property.

Abishek Kumar an avid writer, whose focus is more towards highlighting civic issues our society faces on a daily basis. He provides tips on property investment, writes on real estate market price trends in India, and contributes an insight on the latest residential projects. For more property related queries, you can visit http://www.commonfloor.com