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PRESCRIPTIVE AND CUSTOMARY EASEMENT RIGHTS

Courtesy/By: Mahek Bhatter | 2020-04-18 17:54     Views : 253

Easements are rights which have been defined under the Indian Easements Act of 1882. It provides for two types of easements, namely Prescriptive Easements and Customary Easements. 

Section 15 of the Act provides for Prescriptive easements, wherein, such easementry rights are customs till the time they are converted into rights and enforced by the law. There are various conditions that need to be fulfilled for prescriptive rights to be fulfilled or claimed. 

These are-

  1. These rights should not be ambiguous and certain in nature. They should be such customs which are in force in a proper and clear manner.
  2. Such prescriptive easements should be claimed simply for the enjoyment of the person claiming them, and not others.
  3. These are rights which need to be claimed and enjoyed in an independent manner, such that there should be no issues and problems raised from the serviant owner, and should not cause excessive harm to the serviant land.
  4. In case such rights are claimed against civilians, these should be enjoyed peacefully, without interruption for a period of 20 years, whereas in the case where they are being claimed against the government, they should be enjoyed for a period of 30 years, without any disruption. 

Section 18 of The Indian Easements Act, 1882 provides for customary easements. These are easementry rights which arise out of the local customs of the area, which need not be converted into any rights or laws for them to be considered as enforceable in the court. They can be claimed even when they are not recognised as actual rights. 

Unlike prescriptive easements, customary easements do not consist of a specified time period for which they can be claimed. As long as the local customs are into play, the shall be considered as naturally acquired easementry rights. 

The unique feature about these easements are that these rights are specific and particular to the are in which they are practiced, and therefore cannot be acquired everywhere. 

Example:

In a town, there is a custom that residents shall not construct any window in their houses, for it disrupts the privacy of their neighbours. Now, A, a new owner shifts into this town and constructs a house next to his neighbour, B. Both the houses cannot construct windows, and acquire this customary easement for the purpose of preventing the breach of invading the privacy of each other. 

Courtesy/By: Mahek Bhatter | 2020-04-18 17:54