Easement involves two distinct owners and two distinct properties where one owner possesses, for the beneficial enjoyment of his/her property, a right to do and continue to do something or to prevent and continue to prevent something being done in or upon or in respect of other property owned by the other owner. Thus, the property of former owner is called a dominant heritage and the former owner is called the dominant owner and the property of the other owner is called a servient heritage and the other owner is called a servient owner. Such right is called a easement right and is capable of grant, inheritance, transfer, acquisition.
Easements may be in the form of right of way, right to air and light acquired by grant, prescriptive right to air and light, prescriptive right to pollute air and water. Easements becoming the subject matter of property documentation are easements right of way, easements of air and light, easements in the nature of reparian rights, as also of right to build, right of support, right to surface and percolating water, right to uninterrupted flow of stream, right to drainage, sewage, right to use the water of a stream for consumption and irrigation.
In drafting the Deed of Easements in its various forms a lawyer had to define properly the rights, obligations, limitations, restrictions of the dominant heritage and the servient heritage in its right perception as also whether the easement right is permanent or for a term of years or other limited or subject to periodical interruption, or exercisable only a certain place, or at certain times, or between certain hours, or for a particular purpose, or on condition that it shall commence or become void or voidable on the happening of a specified event or the performance or non-performance of a specified act or continuous or discontinuous, apparent or non-apparent.
When the property is transferred or its beneficial interest is granted through property deeds such as Sale/ Purchase Deed or Deed of Lease or Mortgage Deed or Development Agreement & Development Power Of Attorney or Transfer of Development Rights or Agreement for Sale a lawyer has to examine and note through the medium of Search Report and Certificate of Title whether such property is a dominant heritage or servient heritage and accordingly had to incorporate therein the relevant terms as to easements.
The rights, obligations, limitations, restrictions of and relating to the dominant heritage and the servient heritage to be incorporated in the covenants of property deeds are regulated by the provisions of central and state enactments relating to Easement, Transfer of Property, Registration, stamp duty and so on.
The Covenants of Easements may be in the following Forms:
- Deed of Grant of Right of way
- Agreement of Air & Light
- Grant of an Easement of Light & Air
- Agreement for limited Light & Air
- Agreement between two adjoining owners for light & air
- License to use light & air
- Agreement to remove obstruction to air and light
- Agreement of lease of riparian right to Draw water
- Agreement for sharing riparian rights
- Agreement for License to draw water from well
- Agreement as to right of Eves Dropping
- Agreement for easement of support
- Grant of right of sewage & drainage
- Agreement of release of right of way
- Agreement of release of easement of air and light