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property_law:easement:lessor-and-mortgagor

Can a lessor or a mortgagor impose an easement?

Section 10 of The Indian Easements Act, 1882: Lessor and mortgagor

Subject to the provisions of section 8, a lessor may impose, on the property leased, any easement that does not derogate from the rights of the lessee as such, and a mortgagor may impose, on the property mortgaged, any easement that does not render the security insufficient. But a lessor or mortgagor cannot, without the consent of the lessee or mortgagee, impose any other easement on such property, unless it be to take effect on the termination of the lease of the redemption of the mortgage.

Explanation: A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of building, exceeds by one-half, the amount for the time being due on the mortgage.

Powers of owners not in possession

If a person lets his land to another he cannot, during the continuance of the lease, impose an easement which would derogate from the rights of the lessee as such, for instance, if “A” has let his house to “B” he cannot afterwards grant a right of way through its courtyard to an adjoining owner, or grant a right to discharge sullage water or smoke and vapours into that house as these will interfere with the use and enjoyment of the house by “B”. But A can grant an easement to the owner of an adjoining house to rest his beams on A’s walls, or A may agree not to raise any constructions on the demised premises so as to darken the room of an adjoining owner, or if there is grass growing in the compound of the house let, and if A has reserved his right to it, he may grant an easement to an adjacent owner to graze his cattle there. In the case of a mortgage the property is only security for the loan, the mortgagee is interested only in the repayment of the loan and so long as the security is not rendered insufficient the mortgagee has no cause to complain if any easement is imposed by the mortgagor on the property.


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Created on 2021/04/02 10:42 by LawPage • Last modified on 2021/04/09 22:26 (external edit)