Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 880038616
Easement of necessity is a fundamental concept in Indian property law that arises when a property owner requires access through another person's land to enjoy their own property. This legal principle is codified under the Indian Easements Act, 1882.
Definition and Legal Framework
An easement of necessity is defined as a right that arises when the dominant heritage (the benefiting property) cannot be accessed or enjoyed without using the servient heritage (the burdened property). This type of easement is governed by Section 13 of the Indian Easements Act, 1882, and is based on absolute necessity rather than mere convenience.
Key Characteristics
Absolute Necessity Test: The law applies a strict test of absolute necessity, not convenience, when determining whether an easement of necessity exists. This means the property owner must demonstrate that there is genuinely no other reasonable way to access or use their property.
Landlocked Properties: Easement of necessity typically arises when a piece of land becomes landlocked, meaning it has no direct access to public roads or utilities except through another person's property. This often occurs when larger tracts of land are subdivided and sold.
Common Scenarios
The most typical situation involves property transactions where land division creates access issues. For example, if X sells land to Y for agricultural purposes, but Y cannot access the land without passing through Z's neighboring property, this creates an easement of necessity.
Another scenario occurs during property partition among joint owners. When joint property is partitioned among coparceners and one person's share requires access through another's share for beneficial enjoyment, the law grants an easement of necessity.
Legal Categories
These easements automatically arise by operation of law when the necessary conditions are met, rather than requiring explicit agreement between parties.
The principle underlying easement of necessity ensures that no property owner should be deprived of the reasonable use and enjoyment of their land due to lack of access, while balancing this against the rights of neighboring property owners
