An easement is a charge on one plot of land, the servient property, for the benefit of another, the dominant property. Common examples are a right of way over a neighbour’s land, a right to drainage or a right to keep a window or overhanging structure. The right attaches to the land and passes automatically to every successive owner.
Statutory basis
Easements are governed by title 5.6 of the Civil Code, beginning with article 5:70. They arise either by grant – a notarial deed registered in the public registers – or by prescription, under article 3:99 after ten years of good-faith possession, or under article 3:105 after the limitation period of twenty years has run. Articles 5:78 and 5:79 allow the court to amend or terminate an easement where circumstances have changed or the interest in it has lapsed.
How it works in practice
The content of a granted easement is determined primarily by the wording of the deed, read in the light of what the parties could reasonably infer from it; local custom and long-standing use fill the gaps. The owner of the dominant property must exercise the right in the least burdensome manner, and the servient owner may not obstruct it. Maintenance of a shared access road is often regulated in the deed, and where it is not, the burden falls on the party benefiting from the right.
Where it goes wrong
Disputes usually start with a change of use: a right of way granted for a farm is used by a business with heavy transport, or a footpath becomes a driveway. Whether that is still within the easement depends on the deed, not on what the neighbour has tolerated for years. A second source of conflict is prescription, where a long-used path is claimed as a right; that requires possession, not merely permission, and tolerance by the neighbour blocks the claim.
Related terms
Transfer of title, ground lease and purchase agreement for real estate.
Is there a dispute with a neighbour about a right of way or drainage? Our real estate lawyers read the deed and the registers and advise on the options.
