“Easement rights is a fundamental rights” Discuss

1. 1.       INTRODUCTION:

Easement normally means the right to use a land that does not belong to the person using it.

Section-26 of the Limitation Act, 1908 provides for acquisition of right to easement. The term easement’ is defined in section 2 (5) of the Act which reads as follows:

“Easement includes a right not arising from contract, by which one person is entitled to remove the  appropriate for his own profit and part of the soil belonging to another or anything growing in or attached to, or subsisting upon, the land of another.”

 a)      Defining easement rights at a glance: An easement is a right given to another        person or entity to trespass upon land that person or entity does not own. Easements are used for roads, for example or given to utility companies for the right to bury cables or access utility lines. Landlocked home owners sometimes pay for an easement to cross the land of another to reach their home.

Easements run with the land. Almost every home has an easement. It is important to look for easements in the public records, especially if a prospective buyer plans to put in a swimming pool. A property owner cannot build on top of an easement.

Easements by prescription are acquired by hostile, open and notorious use for five years. For example, prescriptive easements could be claimed by a person who travels across a parcel of land owned by another and continuously for five years without the owner’s permission or consent.

b)     Facts About Easements and Rights-of-Way:

   i.            Easement – An easement is the right to use another person’s land for a stated purpose. It can involve a general or specific portion of the property.

  ii.      Right-of-Way – A right-of-way is a type of easement that gives someone the right to travel across property owned by another person.

  iii.            Benefits easement provides with an example- Say, Ms. Tarannum owns a tract of land that borders the Gulshan Ladies Park, a popular area for jogging, picnic, boating and fishing. Mr. Asif lives next door to her, but his land does not touch the park. To avoid trespassing, he must access the park by walking or driving to a public entry point.

Instead, Ms. Tarannum grants an easement allowing present and future owners of Mr. Asif’s property to cross her land to access the park. It becomes part of the deed for both properties.

1. iv.   Benefits to individual and/or business entities- In the example above, a tract of land was granted an easement so that its owners could use a neighbor’s land to access a public area. Ms. Tarannum could grant an easement to another individual to do the same, but without adding it to her deed. That type of easement normally expires at a specific time or event or upon the death of the person who benefits from it.

2.  WHAT WE NEED TO KNOW ABOUT EASEMENT RIGHTS

a)      An easement may give a utility company the right to erect power lines or bury a gas pipeline across a tract of land. A housing development might own an easement that allows it to build and maintain a water storage facility.

Both easements above would probably be included in a deed description that shall remain in place when the land is sold.

b)     The landowner who grants an easement usually cannot build structures within an easement area or use fencing that would hinder access. Prior to purchasing a property, one should know where all easements are located and the restrictions associated with them.

 c)      Easement can effect property value. Several easements on a tract of land may limit the choice of building sites at that area. High tension power lines running through an easement near an otherwise great building site can be unsightly. Resale values may be affected if the easements are considered risky to health.

Sometimes, buyers may dislike the rights of others to use their land.

It should be known that as  long as an easement is a part of deed, there will always be the possibility that the individual who benefits from it will decide to enforce it.

d)      Acquisition of easements by prescription  Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible. [1]

e)      Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.[2]

f)       Where the property over which a right is claimed under sub- section (1) belongs to the Government that sub- section shall be read as if for the words” twenty years” the words” thirty years” were substituted. Explanation.- Nothing is an interruption within the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.[3]

1. 3.     [4]CONDITIONS FOR EASEMENT

Section 26 of the Limitation Act provides for the rules of acquisition of the right of easement. According to this section the right of easement regarding enjoyment of light, air, way, watercourse, use of water or other easement shall be absolute and indefeasible if it is enjoyed continuously for a period of 20 years in the case of enjoying private property or 60 years in the case of public property. But this use or enjoyment must fulfill some essential conditions which have been stated as follows:

a)                  Peaceably: Enjoyment of easements must not be by force stealth or violence of any sort.

b)                  Openly:  Easement must be open and not by stealth or surreptitiously or in disguise.

c)                  As of right: The enjoyment must be rightful for both the parties and not unfair.

d)                  Without interruption: This means without any obstruction on the part of the person against when the easement is claimed. Easements may be enjoyed whenever the situation demands, not necessarily at all times. Non users of easements have no right to interrupt in this case.

But the right acquired by section 26(1) will be extinguished if there is any interruption for 2 years. So, if any such right is acquired and subsequently obstructed, the person acquired it must file a suit within 2 years claiming such a right.

Time of Continuous enjoyment:

Under the clause 3 of section 26, the property over which the right of easement is claimed must be enjoyed:

i)        20 years in the case of private property.

ii)      60 years where such property is a government property.

iii)    It has been provided in article 37 of the Limitation act that the person claiming the right of easement will have to file the suit within 3 years of his being obstructed from using the right.

  4.     EASEMENT RIGHTS IN  JANET WICKELL’S WORDS (Author)[5]

An easement law applies to a property in general or to a portion of it. Easements cover any issue agreed by both parties which normally become a permanent part of the deeds for both parcels. Including an individual, easements might be written to benefit a property instead which in turn benefits the individual.

Permanent easements are beneficial to business or organizations. A utility company might have the right to erect power lines or bury utility lines on a tract of land. A housing development could be granted an easement that allows it to build and maintain a water storage facility on a property he does not own.

Expiration of easement at a specific time or event or upon the death of the person who benefits from it are not usually added to a deed description.

 a)      Potential Problems

1.            i.         Negative effects created by easement on property value:

• The locations and restrictions of easements should be in knowledge before purchasing a property. These details are crucial, whether the land is residential, commercial, or industrial.
• As mentioned earlier, potential buyers are sometimes reluctant about the allowance of others having any rights what so ever on their property. The negative perceptions are even stronger if they include easements like high power tension lines. Those lines are considered unattractive and not environment friendly (refer to Pg 4 section 3 C ).

1.          ii.         It should be known that as long an easement is a permanent part of your deed, there’s always a chance that the individual who benefits from it will decide to take advantage of it, and this will not be illegal. Experienced real-estate attorney however can suggest the legal steps to be taken to remove an unused easement from one’s deed.

 5.     TOP 5 WAYS THAT REAL ESTATE EASEMENTS ARE CREATED

The diverse reasons why one entity would want/need to use the real property of another for easements are discussed below:

a)      Creation of easements by written agreement:

If two adjoining parcel owners have a common property of a particular supply, an agreement might be created which will set out the ways how costs to maintain the property might be shared and also set up an easement for the owner of the property on which the property is not located to gain access for permitted activities regarding that entity.

b)     A deed conveying property:

Say Mr. X owns a 100 acre land parcel and wants to sell the back 30 acres. For the new owner of the back parcel to access the public road, an easement would be created in the deed specifying which portion of the front 100 acres were to be used for this access and even possibly drawing out a driveway access on a survey.

c)      Easement by necessity by court order:

Let’s keep in mind the example mentioned above. Now say there lays a piece of land with no access to a public roadway due to surrounding neighbor’s properties. However this situation was created in the first place, most states recognize that a property owner has the right to ingress and egress[6] their property. In this case, a court could issue an order creating an easement by necessity across one of the neighboring properties.

d)     Easement by condemnation:

Even if an owner is in disagreement with the “public good” statement, a government might condemn a property or portion of a property under eminent domain in order to use it for some public project. For example: Easement for condemnation for building a public mosque.

e)      Easement by prescription:

Suppose Mr. X who probably doesn’t have way to access entry to his garden without trespassing Mr. Y’s land but does it anyway by trespassing Mr. Y’s land. According to state law, after a certain period, Mr. X may claim an easement by prescription. As mentioned, the use of Mr. Y’s land must have been without his permission, but visible and open to the knowledge of the owner. Thus, since Mr. Y did not stop this access, he could be forced to allow the easement by prescription.[7]

6.     Facts and answers from:

a)      The owner/holder of Easement Rights:

The beneficiary or grantee of an easement or right-of-way holds certain rights regarding usage of the property described in the agreement. The holder’s rights over use of easement are restricted by the agreement. Although the landowner has permitted the use of a defined portion of his/her land for easement, he still holds the ownership of the property.
The agreement defines all the rights and obligations of the holder of the easement or right-of-way and the restrictions that are placed upon the property subject to the agreement.

b)      A blanket easement may cover not only the specific location of a utility structure but the entire parcel. Blanket easements provide protection of water and gas co-ops and well-site flow lines.  A property owner should check with the holder of the easement to see if it is still required or whether there can be a reduction in size.

c)       A landowner gets paid for an easement or right-of-way.

To make the agreement legal, the granter gets paid for the easement or right-of-way. Any other compensation is subject to negotiation between the two parties.

d)     A landowner can refuse to provide an easement or right-of-way. Before the registration of a new easement or right-of-way, he must consent in writing. If a landowner refuses to grant consent, an easement or right-of-way may still be obtained and registered if it is based upon a decision of the Surface Rights Board, expropriation, or a judge’s order if it is determined that registration would be in the greater public good.

e)       An easement or right-of-way can be removed from the title by a judge’s order. An argument for removal must be based upon proof that the easement or right-of-way is no longer needed. Even though an easement is removed from the certificate of title, its boundaries remain on plans to show locations of abandoned buried facilities.

f)       There are four ways to determine the location of an easement or right-of-way. First, a survey plan may be registered at Land Titles. Second, the easement may be described by a metes and bounds description, with description of the easement in words. Third way is

g)      when the landowner consults with the holder of the easement and fourth, have the boundaries identified by an Alberta Land Surveyor.[8]

h)      The building permit will not hold information about the easement. It is the responsibility of the landowner to know any such information. The holder may be able to veto future development and uses of buildings even if they are not located on the specific land identified as the easement. Before landowners build or apply for a development permit, they should check the certificate of title to the land for easements or rights-of-way and any accompanying restrictions.

i)         Easement’s affect on the value of property differs from situation to situation. The value of property may be affected by restrictions on the land due the easements, the effect of which property owners and purchasers should hold under consideration.
Restrictions are based upon either access or safety. Some restrictions may be negotiable, and the ones that are opposed by government regulations are non-negotiable.

j)        Uses that do not pose any safety concern or that will not restrict access are often permitted. Landowners should consult any easement or right-of-way agreement prior to undertaking any major construction or alteration to their property.

 k)      An encroachment on an easement is a physical location of a structure, part of a structure or land use into the area of the easement or right-of-way contrary to the agreement. Depending upon the type of encroachment, the holder of the easement or right-of-way may require that the structure be removed or land use be terminated at the landowner’s expense.
The encroachment on an easement requires the prior written approval of the holder of the easement or right-of-way. The approval is usually by way of an encroachment or amending agreement.

l)        A landowner can cross an easement or right-of-way. The holder will normally grant a crossing agreement or the appropriate consent to landowner who needs to consult the holder in case such an issue arises. Typical examples of crossings are: utilities (both overhead and underground); fences, roads, driveways, ditches, grading or changes to the soil cover over an easement or right-of-way.

m)   There are penalties for locating buildings or improvements on land subject to an easement that may be faced by the landowner who has to bear all the costs of removal and any associated damages resulting from unauthorized location of improvements on land that’s subject to easement.

n)     Maintenance of the property is the responsibility of the landowner. If any damage has been done by the holder on the area of easements, the holder needs to bear the cost to fix the damage because the structures owned by the holders on the area of the easements are not the responsibility of the landowner. Again, the holder of an easement is not required to pay for damages to a landowner’s improvements that are located on the easement area contrary to the agreement.

o)      Who can enter the area covered by an easement or right-of-way and when can they enter?

The agreement covering the easement or right-of-way will specify who, other than the owner of the easement, may enter the easement or right-of-way area and when they are entitled to do so. A notification policy is usually included in the agreement.
Access by the representatives of the holder cannot be prevented although they should carry proper identification. Access must be provided for excavation, repair or any other activities outlined in the agreement.

p)      It is important to read the agreement as each is different. The agreement covering the easements and right-of-way is the only document that spells out the specific details and the limitations or restrictions placed upon the land.

q)     For easement or right-of-way informations, the first sources of information are the plans and documents registered at the Land Titles Office. Next, is usually the holder who is well informed about the nature of the easement and its conditions and restrictions. The Alberta Land Surveyor is another source.[9]

1. 7.     TERMINATION OF EASEMENT

Unlike other types of interests in land, easements may be terminated by abandonment under certain circumstances. The easement holder’s simply stating a desire to abandon the easement is not enough, because words alone are legally insufficient to constitute abandonment. However, if the easement holder intends to abandon an easement and also takes actions which demonstrate that intent, that may be sufficient to show abandonment of the easement, and the easement may be terminated. An action that qualifies as showing ‘’intent to abandon’’ an easement is an easement holder’s non-use of the easement for an extended period of time.

1. 8.     CONCLUSION

 Once an easement is created, the holder of the easement rights has the right and the duty to maintain the easement for its stated purpose, unless otherwise agreed between the holder of the easement rights and the owner of the underlying property. The holder of the easement rights can make any change, improvements, alterations etc to the particular area he has rights over as long as those alterations do not interfere with the rights of the property owner through whom the easement exists. Summing up, I would like to conclude my report repeating my topic of research, “EASEMENT RIGHT IS INDEED A FUNDAMENTAL RIGHT.”

1. 9.     BIBLIOGRAPHY:
   

1. 1.       Dworkin, Gerald (March 1964). “Limitation Act, 1963”. The Modern Law Review (Blackwell Publishing) 27 (2). ISSN 1468-2230.
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   8. 9.       Easements and Reversions, Donald A. Wilson, 2^nd edition, John Wiley & Sons Canada, Limited, 2013
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   10. 11.   The Indian Contract Act- D.F. Mullah
   11. 12.   Commercial and Industrial Law- Sen & Mitra
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   13. 14.   Company Law and Partnership ; Nirmalendu Dhar
   14. 15.   Bangladesh Labour Laws Act, 2006- Governmental Publications
   15. 16.   http://homebuying.about.com/cs/easementsrow/a/easement_faq.htm
   16. 17.   http://realestate.about.com/od/realestatebasics/tp/topeasements.html
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       1. 20.   The Law of Easements and Licenses in Land, Jon W. Bruce, James W. Ely Jr., 2^nd edition.