What is an easement and a real burden?

Do you need an easement properly set up when donating real estate? We can help you prepare a deed of gift, easement of usufruct and a proposal for entry into the Land Registry.

What is an easement?

Parents often decide to give their house or apartment to their children. It works out cheaper than what it would cost to settle the estate in probate proceedings. In addition, they have control over the division of their property between their children and can avoid quarrels 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.

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.

Therefore, if you want to give the property to your children and at the same time secure the right to live in it, it is not enough to write a general sentence in the contract about living there for life. You need to specify exactly which areas you are allowed to use, who pays for utilities, repairs, services and what happens if relations in the family deteriorate. As part of our gift of property service, we will prepare the agreement and the proposal for registration at the Land Registry so that the easement actually protects who it is intended to protect.

Easements are divided into easements and real easements.

An easement is an obligation of the owner of the thing to remain passive in relation to the beneficiary of the easement in specified cases. 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, the electricity supply 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.

Example from our law practice

We were approached by a client who had bought a cottage to which the only access road was via a neighbouring property. The original owner assured him that the road had always been used, but no easement was registered in the land registry. After a few months, the new neighbour blocked the road with a barrier and demanded a one-off payment for continued use.

We first checked the title deed, the historical contracts and the previous use of the road. We then drafted a road easement agreement for the neighbor, outlining the exact route, use, maintenance, and one-time compensation. As a result, the client avoided litigation and the easement was recorded in the land registry. In the future, he is assured that he will be able to access his cottage even if the neighbouring land is sold.

What is a real burden?

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

There is a relatively wide range of ways in which the content of specific rights and obligations under an easement can be adjusted by agreement between the parties. So it all depends on you and the quality of the legal documentation you enter into. Remember that a well-drafted contract is the basis for a stable relationship between the beneficiary and the obligor of the easement. Only this will give you legal certainty and protect you from future problems.

Summary

An easement and a real burden are both easements, but they function differently. An easement mainly restricts the owner of the encumbered property by requiring him or her to tolerate or refrain from doing something – for example, allowing passage across the property, running utilities, or allowing the donor to live in the property for life. A real encumbrance goes further and imposes an active duty on the owner, such as providing care, maintenance, or other recurring benefits to the beneficiary.

In practice, you will most often encounter these institutes when making a gift of real estate within a family, when dealing with an access road to the property or when regulating relations between neighbours. The biggest mistake tends to be a vague contract or failure to register it in the Land Registry. If an easement is truly intended to protect your home, access to the property or other rights, it must be precisely worded and properly recorded.