WHAT IT MEANS IN PRACTISE WHEN A REAL ESTATE IS ENCUMBERED BY AN EASEMENT?

Author: Mgr. Iva Čípová, 11. 5. 2021

WHAT IT MEANS IN PRACTISE WHEN A REAL ESTATE IS ENCUMBERED BY AN EASEMENT?

Our lawyer Iva Čípová gave an interview about property rights to NEMO Report – specialists in screening and detecting risks when buying real estate. In the interview they discussed easements – what types of easements exist and how they apply. Iva explains how to check whether a real estate is encumbered by an easement in the Land Register, what to look out for when buying a property and how to delete the easement from the Land Register.

We present a transcript of the interview in our article, the interview was also published on the NEMO Report blog.

A record of the Land Register often contains a notice about “easement”.  How would you explain to a layman what that means?

Generally, an easement is a form of encumbrance on real estate. An easement restricts the owner of the property in favour of another person in such a way that the owner is obliged to endure something, refrain from something or do something. A simple example is a road easement– the landowner must tolerate a person entitled to drive over his or her land.

What types of easements exist and what are the main differences between them?

Depending on the nature of the obligations that the property owner has, easements are divided into servitudes and real burdens. A servitude means that a real estate owner is obliged to tolerate or refrain from doing something for the benefit of another person (e.g. servitude of a real estate use, road servitude mentioned above). On the other hand, real burdens oblige the real estate owner to give or do something for the benefit of another person (e.g. obligation to provide a part of a harvest from lands). In our experience servitudes are much more common than real burdens.

Servitudes are further divided into land servitudes and personal servitudes. Land servitudes are established in favour of certain real estate and are transferable together with that real estate. Personal servitudes, on the other hand, are established for the benefit of a specific person, are not transferrable and terminate upon the death of the beneficiary (unless otherwise stipulated in the contract).

In most cases easements are created by contract. However, they can also be created by testament, by court decision and even by so-called acquisitive prescription. In case of real estate, the easement is created only by inscription into the Land Register (not by concluding a contract).

An easement can be created for a consideration or free of charge.

In case that I find a notice "easement" in the Land Register, does it always mean some kind of restriction?

When checking the extract from The Land Register it is necessary to check whether the easement is listed in the title deed in part B1 or part C.

If an easement is listed in part B1, it means that it was established in favour of a real estate and therefore does not imply any restriction for you, or more precisely, it may bring you a right or some kind of a benefit. Therefore, you do not need to worry about this when you buy the property.

If an easement is listed in part C, it means that it encumbers a real estate – when buying the real estate you need to familiarise with it as much as possible, so that you are aware of what an easement will mean to you in the future and whether they will interfere with your property rights.

It always depends on a specific entry in the Land Register, therefore we recommend to have a complete extract from the Land Register where the easement is defined. To be more certain we recommend to request a contract on establishment of the easement from the real estate owner or from the Land Register, to find out what specific obligations and rights you have under the contract.

Could you list the typical examples of easements? Can you briefly explain how an easement is executed in practice?

The most common types of easements are:

  • Habitation/right of use – this easement provides its beneficiary with a right to use a real estate or its part. The easement restricts the owner from using his/her real estate. Also, a lending bank will require this easement to be deleted in case that current or future real estate owner wants to use this real estate as a collateral to obtain a loan. This type of easement is most commonly used in cases when grandparents donate their real estate to their children or grandchildren. By establishing an easement they secure to continue to live in their house or apartment free of charge and with no restrictions. However, this easement frequently stays registered in the Land Register even after the death of the beneficiary. In this case it is necessary to submit a request to delete the easement and to provide the death certificate.
  • Servitude of footpath and passage etc. – usually, beneficiaries are entitled to cross particular lands on foot or by car. Therefore, the landowner must tolerate the passage/transit through his/her land by the beneficiary.
  • Servitude of public utilities – this easement entitles its beneficiary to set up or lead through servient land water, sewage, energy or other lines while the landowner is obliged to tolerate it. This type of easement is established in favour of energy and similar companies. The landowner is generally obliged to refrain from everything that may jeopardise the public utilities. This easement may reduce the value of the real estate. On the other hand, it is usually not an obstacle to use the real estate as a collateral.
  • Other useful easements are, for example, right to draw water (right to have access to another’s land to draw water), right of pasture (right to graze cattle on another’s land), usufruct easement (right to harvest crops from another’s land). There are more types of easement that are not used much in practice.

It is important to mention that although there are similar characteristics that define each type of easement, each individual easement has its own specific conditions and specification for that particular situation and real estate. Therefore, in any case we recommend to get an extract from the Land Register and a document (a contract) under which the easement was registered.

How it is possible to delete an easement from the Land Register?

Deleting an easement from the Land Register is not entirely straightforward as the deletion process depends on its type. The agreement of contracting sides or a court decision is necessary. The standard procedure is to prepare an application for the deletion of the easement, officially verify the signatures of the parties, prepare a proposal for deletion of the easement and submit these documents to the Land Register. This is associated with a fee of CZK 2,000. In case of the death of the beneficiary of the easement a certified copy of the death certificate must be attached to the application for deletion of the easement.

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