What is an easement and a real burden?

What is an easement?

Often the donor does not have a 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 is easily resolved by including an easement in the donation agreement itself and having it registered in the Land Registry at the same time as the new owner.

Sometimes easements and their conditions are quite complicated, but the meaning is clear – no one can then evict the donor from the apartment or house against his will, even if he is no longer the owner. However, it is important to remember that the registration of an easement in the Land Registry reduces the value of the property. It cannot then be practically mortgaged at the bank and you can only sell it well below the price.

In the new Civil Code, the legal regulation of easements has been expanded 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.

We can illustrate this with the example of Mr Novák owning the land on which the driveway to Mrs Jelínková’s house runs. This land of Mr Novák is encumbered by a road easement in favour of the land on which Mrs Jelínková’s house stands. As a result, Mrs Jelínek has a right of way to her house over Mr Novák’s land and Mr Novák has to tolerate Mrs Jelínek driving over it. The same can be done for the water supply, electricity or the right to graze the sheep.

The following easements are also expressly mentioned in the law: the support of another’s building, gutter easement, rainwater drainage right, water right, spillway easement, pathway 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.

What is a real burden?

A real burden is actually an easement in reverse. The content of a real burden is that the owner of a thing must actively give or do something. An example of a real burden is often given as 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.

Returning to our example of Mrs Jelínková and Mr Novák, it looks something like this: Mrs Jelínková gives her son Jirka an apartment. In the contract, she exchanges that Jirka must help her with cleaning, shopping and take care of her when she is unable to do so for the rest of her life.

In general, the law allows a relatively wide range of possibilities to regulate the content of specific rights and obligations under the easement by agreement of the parties. However, it must not be forgotten that the basis for stable relations between the beneficiary and the obligor of an easement is a well-drafted contract, which must not be forgotten to be registered in the land register. Only this gives legal certainty and protects against future problems. An easement that is not registered in the cadastre has no effect against a third party who buys or otherwise acquires the house or apartment.

Possibility of modification in the contract

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 a well-drafted contract is the basis for stable relations between the beneficiary and the obligor of the easement. Only this will give you legal certainty and protect you from future problems.