View Full Version : . what is meant by Lessor and mortgagor in easements?

05-01-2012, 01:25 AM
Subject to the provisions of section 8, a lessor may impose, on the property leased, any easement that dose 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 or the redemption of the mortgage.
Explanation :
When lessor may impose easement: Section 8 is general in terms and provides that a person having a grantable interest in land may make an express grant of an easement over the land. Section 10 deals with two such specific cases. A lessor, even when there is a lessor on the land, has the right to grant an easement over the leased land. But the right is subject to the limitation that the easement granted should not adversely affect the rights of the lessee. If the lessee consents to the creation of an easement by the lessor no question of the derogation of his interest could arise. The lessor can, however, impose an easement which will take effect only after the determination of the lease as in this case also the lessee’s interest could not be possibly affected.
When mortgagor may impose easement: Even when a property is mortgaged, the mortgagor (owner) has the right to grant an easement over the mortgaged property. This right is subject to the restriction that the creation of the easement must not render the security insufficient. This provision is based upon the assumption that the imposition of an easement reduces the value of the servient tenement. If the mortgagee consents of the imposition of the easement no question of the security becoming in sufficient can arise and the mortgagor has an unrestricted right to grant the easement. The position is the same when the mortgagor imposes an easement to take effect after the determination of the mortgage.
Insufficiency of security: The mortgaged property is the security for the payment of the mortgage debt and can be sold to relies the debt. It is of importance to the mortgagee that the value to the security but not rendered insufficient to satisfy his debt. Section 66 of the transfer of property act, 1982 forbids the mortgagor to commit any act which is injurious or destructive of the mortgaged property if the security is insufficient or will be rendered insufficient by such act. Section 10 of the easements act deals with one variety of such acts. The explanation to section 10 is identical with the explanation to section 66, T. P. A. The explanation lay down when the security will be considered to be insufficient. In case the mortgaged property is land, the security will be deemed to be insufficient if the value of the mortgaged property does not exceed the mortgage debt due by one-third. And if the mortgaged property consists of buildings the security will be deemed to be insufficient if its value is not more than one and-a-half times the amount of the mortgage debt due.