Doctrine of Servitudes
The questions of servitudes are closely related to encumbrances in the sense that they are rights in aliena solo and effectively burdens upon land belonging to another person. Various categories of servitudes that are enumerated as follows:
Profits a prendere
S. 3 OF RLA defines easements as a right attached to a parcel of land which allows the proprietor either to use the land of another in a particular extent but does not include profit. This essentially makes easements to be capable of being either positive where they allow use of another’s land in a particular manner or negative where they introduce an element of restraint and restrict an owner from using his land in a particular manner.
Under the ITPA there is no definition of Easement the reason being that there is an easement act the Indian Easement Act which provides adequately for this aspect.
Under provisions of S. 30 it is clear that easements qualify as interests of overriding nature examples envisaged are a right of way or right to natural right and therefore essentials to be met for the existences of an easement there are 4 essential elements for one to talk of valid easement.
There must be a dominant tenement and a servient tenement. The dominant tenement is the one for the benefits of which the easements in question exist and the servient is the one over which the easement is exercisable or the one burdened by the easement;
The tenements must be owned by different persons, the definition of easement necessarily points to the fact that one cannot have an easement over his own piece of land and there has to be a situation involving different proprietorship. There is no unity in terms of ownership.
Easements must be capable of accommodating the dominant tenement, i.e. the sort of rights arising should be rights capable of being normally enjoyed and should not require carrying out of extra ordinary measures to ensure that they are enjoyed e.g. a right of way it should suffice that one can traverse to and from across the land and does not require one to be built for extra ordinary things it should be at no extra effort at the party that is burdened. It should accommodated in a
Easement must be capable of forming the subject matter of a grant and here what is required is that the ownership of the servient tenement should be such that an owner can lawfully grant rights and similarly the person receiving the granted rights must be capable of receiving and enjoying the benefits that go with the grant. The right must be certain meaning that the extent or scope should be possible to draw and know how much in terms of rights can be exercised.
Easement are created by statutory grants through an instrument in the prescribed form or by reservation under Section 74 of RLA. They may be acquired by the operation of prescriptive laws such as adverse possession and the provisions of S. 32 and 38 of Limitation of Action Act are relevant.
Section 97 of the RLA enumerates various modes of terminating including executed release in the prescribed form. Occurrence of some condition precedent can also bring an end to enjoyment of an easement, through a court order or where the easement in question has ceased to have any practical benefit. An easement is meant to confer a right to a person other than the owner of the property so if the benefits cease, it should not exist.
Termination occur where no injury occur to the beneficiary of such a right.
PROFITS A PRENDERE
Referred to under Section 3 of RLA which defines profits as a right to go on right of another, to take a particular substance from that land whether it is the soil or products of the soil. At once it becomes clear that unlike in easement, a profit entails the taking of something from another’s land, something capable of ownership that is taken from the servient tenement. The right may also exist in relation to specified piece of land. In terms of nature, we may say that the point of departure between easement and profits is whereas easement must be pertinent to servient and dominant tenement at the same time, a profit need not be as it is a right that does not need the beneficiary to be the owner of the dominant tenement and can come all the way from wherever and all it entails is the taking away of something and off he goes.
In terms of creation, profit may be created either by an express grant or by prescription. Where it is created by an express grant the provisions of S. 96 of RLA the section provides that an owner of land may grant a profit. When that is done the instrument granting the profit must specify how the profit is to be enjoyed, whether it is to be enjoyed alongside with other similarly placed beneficiaries.
Prescription may also lead to acquisition of the profit just like in the case of easements and for that to be effective it has to be formalised by way of registration in accordance with S. 96 (3) the requirement of registration is mandatory unless the right was acquired before a first registration.. if acquired before a first registration, what happens is that it acquires or assumes the nature of an overriding interest in terms of S. 30(e) of the RLA.
There are 3 ways in which a profit can be brought about
Unity of seisin which involves acquisition of ownership or the servient tenement by the owner of the profit at which point the question of enjoying the profits ceases. Enjoyment of profit presupposes going to another person’s land. (unity of seisin is ownership of two plots of land by the same person. Easements and other rights of servient tenement for the benefit of a dominant tenement are extinguished if both tenements come into the same ownership).
Where profit is pertinent to land it terminates through unity of both tenements.
Release that is duly executed and evidenced in writing,
Alteration of the dominant tenement in such a way that it cannot support the exercise of such a right so the alteration must be such that it alters the nature the dominant tenement and is completely overhauled and there is a presumption that any right that existed must be distinguished.
These are often referred to as negative easements to the extent that they restrain the activities of the registered proprietor as to what he can possibly do within his land. In the event the place curves on the free exercise of the proprietor’s powers and freedoms in relation to his land, they in effect introduce an element of curtailment of enjoyment of ones rights in relation to his own property and that restraint is intended to benefit all persons other than the proprietor himself. Examples which give rise to restrictive covenants may include situations as landlord/tenant relationship or situations involving owners of adjoining properties or estates. What happens is that the restrict on ones activities in regard to his own property are such that if they are in relation to the (if it is a neighbourhood that is peaceful, there may be a covenant that precludes one from doing or initiating certain forms of developments which would be inconsistent with the general use to which that particular neighbourhood is earmarked. As long as the restrains are in place, one should enjoy rights of use and abuse, or even destroy, right of support that ones property that the neighbour expects from you, you cannot for example tell the neighbour that you will destroy your land because you might interfere with the natural right of support that the neighbour accepts by reason of being your neighbour.
Areas that can be subject matter of restrictive covenant are many. The landlord has a lasting stake in ensuring that the property is maintained in some form and the tenant will have a number of covenants and conditions binding the tenant to observe certain things.
Doctrine of Servitudes