License and Easement in Property Law 2

Creation of Easements

Since an easement expresses actual interest in the land, the statutes of fraud are applicable and an easement grant must be written, either as reservations in a deed or a separate deed. Easements can also be created by-

. Prescription

. Implication

. Necessity

Most easements are created via express grant, consequently requiring the drafter to clearly express the duties and rights associated with it. Easements can be either negative, such as restrictions on fence height, or affirmative, such as the right of way to cross a property.

Easement vs. License

Mistaken Identity- Easement vs. License

An easement is a permanent right in property, whereas a license, which is not an interest in property, is a temporary right to use that property and may be revoked at any time.

Easement- A non possessory (incorporeal) property interest (short of an estate) that one person (the benefitted party) has in land owned by an- other (the burdened party), entitling the holder of the interest to limited use or enjoyment of the other’s land an easement fulfills the needs of one property at the expense of another.

Because an easement is an actual interest in land, the statute of frauds applies and an express grant of easement must be in writing, usually in the form of a separate deed or a reservation in a deed. Thus, an easement is an interest in land rather than a mere contractual agreement. Easements are also created by necessity (as in landlocked situations), by implication, or by prescription. Because the easement is both a benefit to the holder and a burden to the servient property owner, it significantly affects the value of the respective properties and the extent of the easement should be clearly understood. Most easements originate by express grant, so the drafter should clearly express the rights and duties associated with the easement. An easement can be an affirmative easement, such as right-of-way to cross the property, or a negative easement, such as a restriction on fence height. It can also be created for different periods of time- for a term of months, years or for life.

Easements are classified as either appurtenant or in gross. An easement appurtenant is a right in another’s land (servient estate) that benefits and attaches to the owner’s land (dominant estate.) An easement in gross is personal in nature and does not pass with the land because it does not benefit or attach to a dominant estate

Litigation involving easements usually results from the initial failure to adequately define the define the easement area (the floating easement problem) , the uses to which it may be put, or which party has responsibility to repair and upkeep. An easement for access purposes might not be appropriate for later use to lay utility lines to the property. When an easement or right-of-way is located by a grant that does not define its specific width, such width is assumed to be one that is suitable and convenient for ordinary, free passage.

Easements should not be confused with profits or licenses. A profit is the right to take the soil. Minerals or products of the land a license are not an interest in land, merely permission to use the land of another for some limited purpose; it can be revoked at any time.

License- Permission or authority to do a particular act on the land or property of another.

On a nonexclusive basis a license is a personal, revocable and non assignable right, but unlike an easement, it is not considered an interest in the land itself. If a right to use another person’s land is given orally, it is generally considered a license rather than an easement. The landowner may revoke such a right at any time, unless it has become irrevocable by estoppels. A license ceases upon the death of either party and is revoked by the sale of the land by the licensor. For example, a landowner who grants a friend permission to enter his or her property for hunting purposes thus grants the friend a license to use the land. If an owner mistakenly builds a rock wall across the boundary line so that it encroaches onto the neighbor’s property, the owner sometimes pays the neighbor for a license to keep the rock wall in place. This arrangement should be reduced to a formal encroachment agreement that is signed and recorded so that it runs with the land.

Nature, Concept and Meaning of License- In case where the courts are required to consider the nature of transactions and the status of its parties, one cannot go by the mere nomenclatures given by the parties such as license, licensee, license fee etc. In order to ascertain the substance of the transaction courts have to ascertain and purpose and the substance of the agreement. In such cases intention of the parties is a deciding factor which can be ascertained only by the surrounding circumstances and conduct of the parties. Where the possession of premises was given to circumstances and conduct of the parties Where the possession of premises was given to respondents for monetary consideration with a clause for renewal after 11 years, municipal taxes were also paid by them and rent receipts are issued by executants of agreement, the circumstances suggested that the agreement was a tenancy in disguise of license. In a case continuing in existence for considerable length of time, it could not be inferred that the license had been granted.

Mere possession by party was not sufficient to create sub-tenancy. When sub-tenancy without written consent of landlord was not permissible under a Rent Control Act, it was held that the agreement between the parties would be in the nature of a license and not lease.

An agreement was executed only when the defendant had already come into possession of the residential flat. Because of the agreement there was no longer any threat of being thrown out. The defendant was highly educated. He must have executed the agreement with full knowledge of contents. He approached the Rent Controller for deposit of rent which was not accepted because there was no rent agreement. The fact that he was allowed to use electricity was held to be not sufficient for undoing the license agreement.

  • Allotment for amusement park- A piece of land was allotted by a Development Authority for establishing an amusement park. The document of allotment used the words “license” and “license fee”. The clauses of the document provided that the Authority was to decide what games or rides could be provided in the park, in what manner they were to decide what games or rides could be provided in the park, in what manner they were to be purchased, the mode of collecting the entrance fee, right of inspection of documents was reserved and over and above all this, there was the superior right of cancellation of allotment for breach of clauses. The arrangement showed that the arrangement was nothing complete control of the land. The Supreme Court held that the arrangement was nothing complete control of the land. The Supreme Court held that the arrangement was nothing more than license. It was not a lease. A lease creates a right in favor of the lessee on the demised premises. A license, on the other hand, makes the action of licensee lawful which without license would have been unlawful. The fact that The fact that the allotment for a further period of 15 years did not make the allotment anything more than a license.

Provision of Accommodation to Employee

An accommodation was provided to an employee to felicitate his functioning, the intention being to provide facility during the period of service. The court said that in the matter of occupation of the premises, the relationship between the employer and employee was that of licensor and licensee and not of lesser and lessee. The mere deduction of a sum of money from the remuneration of the employee in lieu of accommodation was not sufficient in itself to establish a lease transaction.

Provision of Accommodation to Private Tutor

In a suit for recovery of possession, the plaintiff’s allegations was that the defendant was the resident private tutor of his son and he converted the residence allowed to him to a coaching centre and that he was a mere licensee and not a tenant. He also contended that he was not paying any rent and was drawing his electricity from the neighbor. He however, could not disclose the name of such neighbor. The resident contended that he had been paying rent regularly since commencement of his residence. No steps were taken the plaintiff to evict during the fifteen year period of his stay in the premises. The court, therefore, said that the defendant was a tenant and not a licensee.

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