Byobona (not real name) bought land from Ndizaawa. The land had an access road that served the other plots that belonged to Ndizaawa. Ndizaawa later sold one of the plots to Bukusuba. Byobona started building the perimeter wall around his plot hence blocking the access road. Bukusuba was up in arms and protested against constructing the perimeter wall. Bukusuba wouldn’t access his plot if Byobona continued with the construction. Ndizaawa was called by both parties to resolve the impasse. Ndizaawa had to tell Byobona that there was a right-of-way easement on his land and that he couldn’t construct the perimeter wall to block access to other plots. Byobona was not convinced and ran to courts of law for justice.
Many prospective land owners like Byobona and Bukusuba are embroiled in land wrangles in various courts of law. These cases sometimes arise out of a lack of knowledge of the creation, interpretation, and implementation of easements by various parties. In this article, I will discuss easements and their implications on your rights as a prospective land owner.
An easement can be defined as the right of a person to have the use of another’s property for a special purpose. An easement can either be a positive or negative right of use over land that is owned by another. By positive, it means the right-holder is allowed to exercise on the land. By negative, it means a right that the right-holder has to prevent the other landowner from acting in a certain manner over that land. It should be noted that the ownership of an easement is a mere right that confers certain rights over the land in question, but never any exclusive right to possession. The common law recognizes an easement as enforceable by or against successors in title to the parties who originally created it. Examples of easements include right of way, utility, and light/ air easements.
According to the law, easements can only exist if they are annexed to a piece of land. Easements cannot exist independently of the land which is benefited by them. Easements are always connected to the land and improve its amenity, utility, or convenience. Easements to a large extent involve the existence of two pieces of land.
It should be noted that there is a need for sufficient proximity between the two parcels to allow a practical benefit to be conferred on the parcel accruing the benefit. An easement usually exists between different owners of the parcels in question.
Easements can be created in the following ways:
Statute or law: There are several laws that stipulate the creation of easements. The Water Act, Registration Title Act (RTA), Roads Act 2019, and Condominium Property Act 2001 are some of the where the issues of easements are discussed. For example, section 60 of the RTA states that a certificate of title is conclusive evidence of the existence of easements, especially registered property.
By agreement between land owners: Landowners can agree to have certain easements on their land. Depending on their arrangement, Easements can be created and implemented. The agreements between the landowners are binding.
By implication: A court of law can decide that an easement must be implied into a transfer of title, otherwise it would be ineffective. This is usually created to aid landlocked parcels gain access or the right way. Failure to have access would make the landlocked parcels unusable.
By necessity after application to a relevant authority: In case an authority deems it necessary, it can create an easement on a given parcel of land to enable other parcels neighboring the parcel to access the relevant services.
By prescriptive use or long use: This usually arises from routine and long use of land that belongs to another to an extent that such use becomes a right. For example, if a neighbor has been using a part of a property as a foot path that belongs to another for years, she may claim to have acquired a prescriptive easement that entitles her to continue to cross the property in the same manner.
It is important for you as a prospective land owner to verify if there are any easements on the particular parcel of land you are interested in. Failure to verify will lead to you wasting time and resources in endless land wrangles. Due diligence is needed on your part to check for any easements on the parcel you want to purchase. you do not want to end up like Byobona and Bukusuba.
The writer is a Land surveyor and Author of a book: Buy the land; How to make a fraud proof land transaction in Busoga.
