Are you buying a property but there is an easement on it? What can such a restriction of ownership mean for the future owner of the property? When is it better to forget about the purchase? And if you do go ahead with the transaction, what should you look out for when entering into a contract? This is what we will focus on in the current text.
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.
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:
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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.
The typical way is by contract, but there are many more options:
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.
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.
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.
The termination of an easement occurs mainly:
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.
Dostupný advokát team of online lawyers will solve it for you.
We provide a complete package of legal services related to real estate sales and purchases, including reservation contracts and escrow services. We will also help you with all tax and land registry issues. Our work is fast and accurate, ensuring a worry-free transaction. You’re also welcome to pay after services are provided.
Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
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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 between 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 survival, and having it registered in the Land Registry at the same time as the new owner.
