Continuing our series of articles on easements, today we discuss issues related to land easements. First, it's worth reiterating the concept of a land easement. According to Article 285 § 1 and § 2 of the Civil Code, it is an encumbrance of one real estate in favor of the owner of another real estate (the dominant real estate) with a right that: (i) authorizes the owner of the dominant real estate to use the encumbered real estate within a specified scope; (ii) limits the actions the owner of the encumbered real estate may undertake with respect to it; (iii) prohibits the owner of the encumbered real estate from performing certain actions with respect to the dominant real estate, to which they are entitled under the provisions on the content and exercise of real estate rights.
Therefore, an easement is a right whose sole purpose is to increase the usefulness of one property or a specific part thereof for the benefit of another. Therefore, the owner of the dominant property has the ability to perform certain actions with respect to the encumbered property, even though it does not belong to them.
A land easement can come in two forms: passive and active . The former specifies actions that the owner of the encumbered property cannot undertake that could hinder the use of the dominant property. An active land easement, on the other hand, concerns the use of the encumbered plot by the dominant person.
A land easement may authorize the owner of the dominant property to: (i) allow access through the property (or a precisely defined part thereof) to the owner's property (easement of passage, driveway or necessary way), (ii) park a car on the property of another person, (iii) use a neighboring well, (iv) limit the height of buildings on the encumbered property, (v) lean a wall against the neighbor's wall, (vi) run or connect to utilities located on the neighbor's plot.
The establishment of a land easement is possible provided that its granting does not impede the use of the encumbered property by its owner. The regulations stipulate that a land easement (like any other) may be established by: (i) an agreement between property owners, (ii) an administrative decision, (iii) a court ruling, (iv) a court settlement, (v) adverse possession.
A land easement may also expire if: (i) the owner of the dominant estate voluntarily waives the right to use another person's real estate, as provided for in Article 246 of the Civil Code, (ii) if the owner of the dominant estate fails to exercise his rights for a period longer than 10 years, (iii) a so-called confusion occurs – i.e. when the owner of the encumbered estate becomes the owner of the dominant estate, and vice versa, (iv) the period for granting the land easement specified in the agreement expires.
According to the regulations, a land easement can be established for a fee or free of charge. Importantly, the difference between a free and paid land easement also lies in its taxation.
Land easements also involve fees, which include compensation for the use of another person's property. This fee may be determined by the parties or the court in consultation with an expert. The amount depends on: (i) the nature of the property (including location, type, and size), (ii) the loss of benefits, (iii) the scope of the owner's restriction on the encumbered property, (iv) the scope and manner of interference with the encumbered property by the entitled party, (v) the location of the facilities affected by the easement, and (vi) the potential consequences of the entitled party's use of the property.
In conclusion, it is important to note the significant role of land easements in economic transactions. This encumbrance on real estate is typically entered in the land and mortgage register. Moreover, it burdens every property owner, and therefore, the sale of the property encumbered with the easement does not result in the easement ceasing to exist or expiring.
In the next article, we would like to present to you the issues related to a specific type of easement, namely the easement of a necessary right of way.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of July 18, 2022
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