Easement and way of necessity

Actual circumstances or needs lead to situations where the need to use someone else’s property is expressed. This type of situation is successfully dealt with by an easement, which gives the beneficiary the right to use someone else’s property, or to require the servient owner to refrain from certain actions that we define for the benefit of certain persons or for the benefit of certain parcels, without the need to transfer ownership or create co-ownership.

In practice, it is very common to regulate the use of someone else’s property as an easement of way for access to one’s own property, a water supply easement, an electricity easement or a utility easement. In the case of personal easements, it is very common to create an apartment easement, whereby the easement beneficiary is allowed to use another’s apartment for their own residential purposes, which is often the case in deeds of gift between relatives, contracts of subsistence or deeds of conveyance, whereby the giver or grantor retains an easement of usufruct over the apartment, even though the grantor has transferred the ownership right in favour of the grantee.

We conduct a thorough review of the situation, identify the client’s needs for the use of the third party’s property, define the precise content and determine the appropriate procedure for the formal legal creation or recognition of an easement, depending on whether the easement is created by operation of law, by prescription, by contract or by decision of a public authority. We ensure that the easement is registered in the land register. In situations where the easement is no longer required, we arrange for it to be deleted from the land register by the appropriate procedure. 

Creation or deletion of an easement by agreement

We encourage consensual forms of easement creation and termination, recognising the intertwined nature of the relationship between easement beneficiaries and the servient owner. In situations where there is an expressed need to create or terminate an easement, we negotiate with the other party the content, scope and duration or termination of the easement, draft the appropriate agreement or declaration creating or terminating the easement and make the necessary arrangements for the registration or deletion of the easement in the land register.

If the parties cannot agree on the creation or termination of the easement, we represent them in court in proceedings based on: 

  • Action for the establishment of an easement: We draft the action for the client and represent the client in the proceedings in which the easement beneficiary acquires the easement right by fulfilling the legal conditions through prescription. The purpose of such proceedings is to remove any doubt as to the existence of an easement against the owner of the servient tenement and to register such an easement in the land register so that it is effective against any subsequent owner of the servient tenement. In practice, we often come across cases where an easement has already been acquired by means of prescription according to the law itself, but this easement has not been registered in the land register, which in practice often leads to disputes about the existence of the easement: the easement beneficiary claims recognition of the easement and at the same time refers to its long-term exercise (e.g. at least 10 years), while the owner of the servient tenement resists this, referring to the fact that the easement has not been registered in the land register. In our law firm, we carefully examine all the possible known facts in the light of the legal conditions of prescription, the principle of good faith and the principle of reliance on land register data, which on the other hand also protects the owner of the servient tenement, since the legal system does not provide any protection to an easement beneficiary who has not ensured that the easement is registered in the land register in time.
  • Action to enforce obligations under an easement agreement: We represent clients in actions to establish the existence of an easement or to obtain a land register permission based on contracts or agreements that were not properly drafted in the past or were not registered in the land register on time. The purpose and objective of such legal protection is to ensure the smooth exercise of the easement and the proper registration of the easement in the land register, which is binding on all legal successors to the servient tenement.
  • Action for the termination of an easement: We take on and represent cases where the owner of the servient tenement claims that an easement should be terminated because it has become useless or has not been effectively exercised for a certain period of time, or because there has been a substantial change in the circumstances in which it was created, or because it imposes an excessive burden on the owner.
  • Way of necessity: We draft an application to the court for the court to grant a way of necessity for a property which does not have a necessary connection to a public road for its normal use, or where such a connection would involve disproportionate cost. We use this type of procedure when the legal requirements for establishing a way of necessity are met, but no agreement can be reached with the owner of the servient tenement to establish an easement of way. The provisions on ways of necessity can also be applied mutatis mutandis to connections to public utilities and other networks, provided that the landowner requesting the connection meets the conditions for connection.
  • Action for disturbance of an easement: We represent clients in disputes arising from the disturbance of easements, taking into account not only the substance of the easement itself and its disturbance, but also the need to ensure that the easement in rem is exercised in such a way as to impose the least possible burden on the servient tenement.

Our extensive experience in the creation, termination and protection of easements and servient owners, together with our knowledge of land register rules, court proceedings and case law, enables us to provide high quality and professional representation to our clients in such matters.

Krištof & Brečko Advokatura