As we announced after our series of articles on construction contracts, we're moving on to the next topic. Today, we're launching another series in which we'd like to introduce you to issues related to easements. In today's article, we'd like to begin by explaining what easements are and what types of easements there are.
An easement is a limited property right that allows the use of land owned by another person within the scope defined by the type and content of the specific easement. It is worth noting at the outset that easements are most often established through a unilateral declaration by the owner (or perpetual usufructuary) of the encumbered property, made in connection with an agreement between the parties. Land easements may also arise through adverse possession, a court ruling, an administrative decision, or a vindicatory bequest.
We distinguish three types :
- land easement,
- personal easement,
- transmission easement.
In practice, all of them exist, although during the construction process we most often encounter land and utility easements, while personal easements are particularly important to consider when purchasing residential buildings. So let's move on to discussing them.
A land easement consists in encumbering a real estate in favour of the owner of another real estate (dominant estate) with a right, the content of which is that the owner of the dominant estate may use the encumbered real estate within a specified scope , or that the owner of the encumbered real estate is limited in the ability to perform certain actions in relation to it , or that the owner of the encumbered real estate is not allowed to exercise certain rights to which he is entitled in relation to the dominant estate under the provisions (Article 285 § 1 of the Civil Code).
As it follows from the above definition, in a land easement we distinguish two real estates: (i) the dominant real , i.e. the real estate whose owner has certain rights, and (ii) the encumbered real estate, i.e. the real estate whose owner is obliged to do something (usually limited, e.g. as to the possibility of development or the obligation to provide access).
A land easement can only be used to enhance the usefulness of the dominant estate or its designated content. Importantly, land easements permanently encumber the property, meaning they remain independent of any change in ownership (though they may expire if not exercised). It is also important to note that even if the easement is limited to a portion of the property (e.g., a single survey plot), it is still treated as an encumbrance on the entire property.
The most common land easements include easements of passage and way, easements of necessary way, easements for the use of specific facilities, and, in the case of construction projects, also for the routing of utilities (water and sewage pipes, laying cables, etc.). It is crucial to properly define the scope of permitted use of the encumbered property. The law does not define this; it merely states that an easement should be exercised in such a way as to minimize disruption to the use of the encumbered property. In the absence of other data, the scope and manner of exercising an easement are determined based on the principles of social coexistence, taking into account local customs. In practice, however, this leads to a strict interpretation – for example, an easement of passage does not confer the right to run sewer pipes along such a road.
A personal easement is a limited property right under which real estate may be encumbered in favour of a designated natural person with a right the content of which corresponds to the content of a land easement.
A personal servitude is an inalienable, proprietary, and autonomous right. It may be established solely for the benefit of a designated natural person and may encumber only real estate.
The content of a personal easement generally corresponds to the content of a real easement. This includes all forms of this right indicated in the definition of a real easement, i.e., Article 285 § 1 of the Civil Code. Among the personal easements, the legislator himself has identified a specific type of personal easement: a residential easement.
The scope of personal servitude and the manner of its exercise, in the absence of other data, is determined according to the personal needs of the entitled person, taking into account the principles of social coexistence and local customs.
A transmission easement is the newest type of easement regulated by the Civil Code. It was introduced by the Act of 30 May 2008 amending the Civil Code and certain other acts (which entered into force on 3 August 2008).
A transmission easement is established in favor of a transmission company whose business involves providing utilities (e.g., electricity, water, sewage, gas). It involves encumbering real estate in favor of the transmission company that intends to build or owns facilities for the supply or disposal of liquids, steam, gas, electricity, and other similar facilities, with the right to use the encumbered property within a specified scope, in accordance with the intended purpose of these facilities .
The content of a transmission easement includes the right to place transmission facilities on another's property, to maintain them, to service them, and to repair faults. For facilities that don't yet exist, the content of the easement includes the right to construct facilities and to access the other's property for this purpose. In practice, transmission companies define their rights in great detail, from the right to construct transmission facilities, through their expansion, to accessing the property for maintenance, to restricting development or planting in the area where these facilities are located.
In summary, easements play an important role in real estate transactions. Properly established easements allow for investment and construction on properties. Owners of encumbered properties, in turn, must be mindful of these limitations and strictly take them into account when planning their investments.
Next week, we'll have a surprise for you, marking the second anniversary of our series. But then we'll return to the topic of easements and describe the relationship between easements and land and mortgage registers.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of May 30, 2022
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