An apartment easement is a right in rem, while a lease is only a contractual obligation. This difference results in enhanced protection of the beneficiary of the easement, which is similar to the protection of the right of ownership (the right to have the thing handed over, the presumption of the right to use the apartment without further delay, etc.).
The establishment of the easement is recorded in the Land Registry, so it excludes any “good faith” of a person who would claim that he did not know about the right of the beneficiary of the easement, which could lead to legal complications for the beneficiary in the disposition of the property or even to arbitrary cancellation of the lease agreement. Although a lease agreement can now also be registered in the Land Registry, this does not happen without further delay, but only if the owner of the apartment agrees to it.
We know, for example, of the donor’s survival easement, where a parent gives his/her flat to a child, but since he/she has no other roof over his/her head, he/she arranges for this life option and has it registered in the Land Register at the same time as the new owner.
No one can then evict the donor from the apartment or house against his will, even if he is no longer the owner. This is a great protection for the original owner. At the same time, the value of the property is significantly reduced. And for example, if you want to use the property to get a mortgage, you are basically out of luck. The only way to sell it is to sell it well below the price.
In the new Civil Code, the legal regulation of easements has been softened, and they are now divided into easements and real easements.
An easement is an obligation of the owner of the thing to remain passive in defined cases towards the beneficiary of the easement. In other words, to tolerate or refrain from certain activities which, without the existence of the easement, he would not have to tolerate.
The following easements are also expressly recognized by law: abutment of another’s building, gutter easement, right to drain rainwater, water right, spillway easement, trail easement, etc. However, it is also possible to establish other easements that are not described in the law. However, they must not be contrary to the law and therefore contrary to good morals and public order.
Thereal burden is then in fact such an easement inside out. The content of a real burden is that the owner of a certain thing must actively give or do something. An example of a real burden is often given in the form of an exchange, where the obligor provides the beneficiary with housing but also provides maintenance or personal care. This is also the case in some gift agreements.
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But let us return to the original examination of easements and leases. The essential feature that distinguishes the two legal institutions is the duration. An easement of a dwelling can be granted for an indefinite period without the possibility of termination (for example, “for the life of the beneficiary”). By contrast, a lease for an apartment cannot be concluded for an indefinite period without the possibility of termination, since ‘temporariness’ is encoded in the very essence of this institution. Moreover, negotiating a long-term lease of an apartment with a more difficult termination option will require much more sophisticated contractual documentation and will thus entail increased legal costs.
The lease must specify the landlord and the tenant, specify the property to be leased – most often an apartment, a house or a part of a house – with sufficient certainty; the amount of the rent and the method of payment (for what period the rent will be paid, when and how); if agreed by the parties, the security deposit (formerly a security deposit), etc. The lease of an apartment is not a right in rem over the property, but only an obligation between the landlord and the tenant. As such, it does not have to be registered in the Land Registry, but if for some reason the owner of the leased property proposes registration, the lease of the apartment can be registered in the Land Registry. The tenant can also propose registration in the Land Registry, but needs the consent of the owner of the property. For such registration, a proposal for entry into the Land Register must be sent to the competent cadastral office and the lease agreement must be attached, or the consent of the property owner if the proposal is made by the tenant.
In view of the above, it can be concluded that the establishment of an easement is a much more stable institution than the lease of an apartment in terms of long-term legal certainty of the apartment user.
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Tip: Parents often choose to give their house or apartment to their children. This is cheaper than the cost of settling the estate in probate. In addition, they have control over the division of their assets among their children and can avoid arguments over property. Often the donor has no house or apartment other than the one they are transferring to their children. He or she wants to continue to live there with dignity. This situation can easily be resolved by including an easement in the gift deed itself , or an easement for the donor’s lifetime, and having it registered in the Land Registry at the same time as the new owner.