Today's article concludes our series on easements. As a reminder, we previously wrote about the nature and types of easements, their registration and deletion from the land and mortgage register, and about personal easements, land easements, and easements of necessity. In this article, we would like to present some practical considerations that may arise regarding easements when investing in real estate.
First and foremost, a potential real estate buyer should first pay attention to the entries in Section III of the land and mortgage register, i.e., the section where easement entries are made. Of course, this isn't the only way to securely purchase a property. Remember that entries in the land and mortgage register are made based on appropriate documents—contracts or declarations. Therefore, it is recommended to inspect the land and mortgage register files at the appropriate district court and familiarize yourself with the basis for the entries contained in the land and mortgage register.
The land and mortgage register entry itself provides only a general overview of the encumbrances on a given property, but more information can be found in the land and mortgage register files. This analysis will help us determine whether the easement actually encumbers the property, the scope of its exercise (e.g., which specific strip of land it covers), and whether it is subject to payment or not, and if so, whether payment is made in lump sum or monthly installments (and in what amounts).
Experience has shown that documents concerning easements are often not found in the land and mortgage register maintained for the acquired property, but in other registers, from which the property was, for example, separated. Therefore, the analysis often requires examining multiple land and mortgage registers. It also happens that maps depicting the easement's course are not attached to the documents establishing them, or are lost due to unclear circumstances.
A thorough analysis of encumbrances is extremely important, because the established encumbrances or their scope can often effectively prevent the implementation of the intended investment.
It should also be noted that an entry in the land and mortgage register is not necessary to establish an easement. However, this is crucial when purchasing real estate, as easements not entered in the land and mortgage register are not protected by the public reliance of the land and mortgage register. Easements not included in Section III will generally expire upon sale. However, this does not apply to easements established based on administrative decisions, easements of necessary way, easements established in connection with crossing a boundary during the construction of a building, or utility easements. This is an exception regulated by Article 7 of the Act of 6 July 1982 on Land and Mortgage Registers.
It's worth remembering that if we are acquiring only part of a property for which a land and mortgage register is maintained and easements are already recorded, then, in accordance with the general rule arising from Article 290 of the Civil Code, in the event of property division, the easement remains in effect for each of the parts created by the division. As for maintaining land and mortgage registers, in accordance with § 93 paragraph 2 of the Regulation of the Minister of Justice of February 15, 2016, on the establishment and maintenance of land and mortgage registers in an electronic system, if a new land and mortgage register is established for part of the encumbered property or if part of the encumbered property is transferred to another land and mortgage register, the court will ex officio assign all rights, claims, and other burdens or restrictions on the property to co-encumbrance.
The solution to the above "rewriting" of easements to newly established land and mortgage registers is to obtain the consent of the easement holder to separate the acquired real estate without encumbrances.
Of course, the above issues are only examples and each transaction may raise problems not covered in this article.
We cordially invite you to follow our series of articles – next week we will present you the topic of the upcoming spatial planning reform.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of August 12, 2022
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