Easement

Easement

An easement is a burden on real estate (the servient tenement) for the benefit of another tenement (the dominant tenement). The easement consists of an obligation for the servient tenement to tolerate something or to refrain from doing something. Easements take various forms, such as:

• Right of way
• Right of way
• Right of view

An easement is typically established by mutual agreement between both owners and after registration of the easement in the Land Registry. It also occurs that an easement is established by prescription. Many neighborhood disputes are the result of easements. In some cases, the court may order the termination or modification of the easement.

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of property law. Contact us to discuss the possibilities.

Easement within property law

An easement is one of the limited rights recognized by property law and is regulated by law in Title 6 of Book 5 of the Dutch Civil Code. Pursuant to Article 5:70 of the Civil Code, an easement is a burden by which immovable property – the servient tenement – ​​is encumbered for the benefit of another immovable property – the dominant tenement. The right is tied to the property: it follows the tenement, not the person, so that it also applies to a new owner after a sale. Anyone wishing to know the exact content of an easement should consult the notarial deed of establishment and, insofar as this allows, local custom and the manner in which the right has been exercised for many years. This subject matter forms part of our broader area of ​​expertise in Property Law , which also covers leasehold and registered property

Establishment of an easement

An easement arises pursuant to Article 5:72 of the Dutch Civil Code through establishment or prescription. In the case of establishment, both owners make agreements that the notary records in a deed, followed by registration in the public registers of the Land Registry. Only with this registration is the right legally established and effective against third parties. For entrepreneurs, this is relevant when purchasing or selling commercial properties, business parks, and access roads: a well-defined easement prevents a rear parcel from becoming inaccessible or a pipeline route from suddenly becoming a subject of dispute. Whether it concerns an international group acquiring a logistics site or the baker on the corner wanting to secure his rear entrance – our lawyers and corporate counsel assess in advance whether the deed covers the exercise of the right that you require.

Easement by prescription

An easement can also arise through prescription, without a notarial deed. A possessor in good faith can acquire the right through acquisitive prescription after ten years of uninterrupted possession (Article 3:99 of the Dutch Civil Code). If good faith is lacking, an easement may still arise on the basis of extinctive prescription after the lapse of twenty years (Article 3:105 in conjunction with Article 3:306 of the Dutch Civil Code). In practice, whether the requirements of possession and the time limits have been met is often a point of contention. We assess the factual situation – who used which path, for how long, and in what manner – and determine whether a claim based on prescription is likely to succeed or can be refuted.

Amendment and annulment by the court

An easement is not for eternity. Pursuant to Article 5:78 of the Dutch Civil Code, the court may modify or terminate an easement at the request of the owner of the servient tenement when unforeseen circumstances exist whereby continued maintenance in its unchanged form cannot be demanded according to standards of reasonableness and fairness, or when the right has existed for at least twenty years and its continued existence in its unchanged form is contrary to the public interest. In addition, Article 5:79 of the Dutch Civil Code offers the possibility of termination if the owner of the dominant tenement no longer has a reasonable interest in exercising the right and it is not plausible that such interest will return – for example, when a reasonable alternative access route exists in the meantime. After termination by the court, the right must be struck off the Land Registry to ensure the modification is also externally effective. We conduct these proceedings for both the servient and the dominant tenement.

Right of way and neighbor disputes

In practice, rights of way and rights of passage are the primary causes of conflicts between neighbors. Disputes revolve around whether an easement exists at all, the width or intensity of the path's use, who is responsible for maintenance, and whether the right has expired or may be relocated. This touches upon both neighbor law and property law. We advise on the drafting and interpretation of deeds, act in negotiations and mediation, and litigate in court where necessary – for private neighbors, homeowners' associations, and entrepreneurs with adjacent properties.

Our approach: from advice to proceedings

MKB Juristen works with mixed teams of lawyers and in-house counsel. This means that you retain the same specialists, whether it concerns advice, a legally watertight notarial establishment, or proceedings for termination or enforcement. We assist international corporations as well as independent entrepreneurs and private property owners. Contact us to discuss your easement situation without obligation.