Chapters of the article
What does an easement mean?
Easements belong to the group of rights in rem and usually refer to immovable property, i.e. a house, land or apartment. However, this is not the rule. They can also relate to movable things, but only to things that are entered in a public register (for example, cars).
An easement is defined as a legal institution that allows certain persons to use things to which they do not have ownership rights. For the owners, it means that they have to perform some obligations or are restricted in something and have to endure something.
What types of easements do we know?
Basically, there are two types of easements, namely easements in easement or real easements. As we have already indicated above, they differ in whether the owner has to tolerate a certain interference with his right or, on the contrary, actively do something.
However, there are many more divisions of easements:
According to the entitled subject
- in rem = the owner of the thing (real estate) is always the beneficiary; easements connected with the ownership of the real estate pass with the ownership of the thing to the acquirer,
- in personam = the entitled subject is a specific person (natural or legal person) and the encumbrance is related only to him/her, upon death (or dissolution) of the subject, the encumbrance ceases to exist.
According to the content
- burdens with an obligation to act (the obliged subject provides a certain performance),
- burdens with an obligation to refrain (e.g. an obligation to refrain from building a fence above a certain height),
- burdens with an obligation to suffer (typically the right of passage or passage over the land).
According to the consideration
- easements for consideration
- easements free of charge
By time
- lasting forever,
- for a fixed period of time,
- for an indefinite period,
- for the remainder of a person’s life.
In terms of utility
- the benefit they confer on the beneficiary,
- a defect in the property of the debtor.
Real Estate Purchase or Sale
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Easement for the use of an apartment or family house
A usufruct of a type of property (not necessarily limited to a dwelling, but also including, for example, land) allows the beneficiary to live in the apartment or house even after the property changes ownership. A typical use of this right is when parents want to give their property to their children. There are many reasons for this and they are far from just being loving parents who want to give their offspring a good life. The practical reason is to avoid the complexities and hassles of inheritance proceedings. There are indeed many reasons.
The advantage of using this legal institute is that the parents (or whoever is subject to the easement) do not have to worry about losing the roof over their heads, even though they do not own the property.
Sometimes, however, parents transfer property to their children in this way, thinking that the offspring will be better able to get a mortgage if they own another property. Beware. Banks usually do not accept properties with such restrictions as collateral. And even after the death of the beneficiary, it sometimes takes a long time before this right is removed from the land register.
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.
How to establish an easement?
The typical way is by contract, but there are many more options:
- by written contract,
- by will in conjunction with the results of the succession proceedings,
- by agreement of the heirs,
- by a decision of the competent authority,
- by operation of law,
- the right corresponding to the easement may also be acquired by the exercise of the right (by possession).
Where can I find out the details of the easement?
Data on easements relating to real estate can be found by consulting the Land Registry, specifically in the title deed in section “C” (easements encumbering real estate) of the specific real estate, or in section B1 (easements in favour of real estate). Therefore, if you are buying a property, always check not only who is the registered owner of the property, but also whether there is an easement on the property and, if applicable, what the easement is.
To buy or not to buy a property with an easement?
This is not a simple answer to this question. You need to know what the easement is. Some of them do not restrict our ownership in any way and may not prevent us from buying. For example, current or future owners of flats who have an obligation to make available a transformer station located somewhere in the cellar of the house, tied to the flat and the share in the common parts of the house, can be at ease.
On the other hand, the purchase of an apartment to which another person has established an easement of use is rather inadvisable, although even here it depends on the purposes for which the apartment is being purchased, whether the immediate housing need is to be addressed, etc.
A property with an easement always loses value to some extent, on the other hand, sometimes this disadvantage can be reflected in the purchase price. The possibility of agreeing with the other party on cancellation or modification is also an important consideration.
Tip: You have a purchase contract in your hand, but you are still not the owner. You are about to file a petition for registration of the property in the Land Registry. The usual deeds of title or easement are seemingly not very tricky, but there are a few basic rules you should know so that everything goes smoothly. Let’s break them down.
Sale of real estate with easement for life
If you are in the position of a seller and a person has a usufruct or survivorship easement over your apartment or house, this does not mean that you cannot sell your property. However, whether you can easily find a buyer for such a property is another question. It very much depends on the layout of the property in question (for example, the beneficiary has a separate entrance and a small flat in a family house) and, pragmatically or cynically speaking, on the age and health of the beneficiary. Expect, however, to sell undervalued and for a long time.
Termination of the easement
The termination of an easement occurs mainly:
- by written contract,
- by a decision of the competent authority,
- by law.
The new Civil Code has introduced a relatively wide range of possibilities to regulate the content of specific rights and obligations under an easement by agreement between the parties. So it all depends on you and the quality of the legal documentation you conclude. Remember that the basis for stable relations between the beneficiary and the obligor of an easement is a well-drafted contract with a specialist. Only this will give you legal certainty and protect you from future problems.