Easements

What we do

In an easement, it is agreed that another party has the right to use a piece of land or parcel of land, without disposing of ownership of this piece of land. A well-known example of an easement is the right of way.

In the case of an easement, one property is always subservient to the other. This is because an easement rests upon one property (the servient property), while the other property benefits from the easement (the dominant property). In the case of a right of way, the property used to access the public road is the servient property, and the property reached via the servient property is the dominant property. Our lawyers and legal experts can answer all questions regarding established easements.

Questions regarding easements? Contact us.

What exactly is an easement from a legal perspective?

An easement is a limited real right by which a real estate property (the servient tenement) is burdened for the benefit of another real estate property (the dominant tenement). This is regulated in Article 5:70 of the Dutch Civil Code. Because it is a real right, the easement rests on the property itself and not on a person: if someone buys the plot, the right or burden passes to the new owner by operation of law. This distinguishes the easement from a merely personal right or an agreement between neighbors.

The content of an easement generally consists of an obligation to tolerate something (for example, a right of way or a pipeline) or to refrain from doing something (for example, not building higher). According to Article 5:73 of the Dutch Civil Code, the scope and manner of exercise are determined by the deed of establishment and, insofar as the deed is silent, by local custom. Furthermore, the easement must be exercised in the manner least burdensome to the servient tenement.

How does an easement arise?

Pursuant to Article 5:72 of the Dutch Civil Code, an easement arises in two ways: by establishment or by prescription.

Upon establishment , the owners of both parcels agree on an easement. This agreement is recorded in a notarial deed and registered in the public registers of the Land Registry. Only with this registration is the right valid and known vis-a-vis third parties. It is therefore advisable to clearly arrange the easement at the time of the purchase or sale of the real estate; see also our page on guidance during the purchase and sale of real estate.

In the case of prescription , the right arises through the passage of time. Anyone in good faith can acquire an easement after ten years (acquisitive prescription, Article 3:99 of the Dutch Civil Code). If there was no good faith, an easement may still arise after twenty years because the original owner can no longer institute his claim for termination. Issues regarding prescription are technically difficult to prove; our lawyers and legal experts assess whether all conditions have been met.

Disputes concerning easements and right of way

In practice, disputes often arise regarding the exact scope of an easement: may the path also be used by car or only on foot, is parking permitted, and who bears the costs of maintenance? Pursuant to Article 5:75 of the Dutch Civil Code, the maintenance of the servient tenement is, in principle, the responsibility of the owner of the dominant tenement, unless otherwise stipulated in the deed. Conflicts range from a neighborhood dispute over a blocked-off path to a dispute between a property developer and a real estate owner regarding a right of pipeline.

Easements are closely related to neighborhood law. We assess exactly what has been established, whether a claim based on prescription has a chance of success, and how a dispute can best be resolved: by mutual agreement, through mediation, or, if necessary, through the courts.

Modifying or terminating an easement

An easement is not set in stone for eternity. The parties can modify or terminate the right by mutual agreement via a notarial deed, which is re-registered with the Land Registry. If this is not possible, the court can provide a solution.

Pursuant to Article 5:78 of the Dutch Civil Code, the court may modify or terminate an easement in the event of unforeseen circumstances or when the right has existed for at least twenty years and is contrary to the public interest. Additionally, pursuant to Article 5:79 of the Dutch Civil Code, the court may terminate the easement if the owner of the dominant tenement no longer has a reasonable interest in exercising it and it is not plausible that such interest will return. We advise on the chances of success of such a claim and conduct the proceedings.

What MKB Juristen does for you

At MKB Juristen, lawyers and in-house counsel work together in mixed teams so that you are legally strong while remaining cost-conscious. We assist both an international real estate group and the baker on the corner who is in a dispute over the path behind his shop. We review deeds and cadastral documents, establish or amend easements, substantiate or refute claims of prescription, and support you in negotiations and litigation.

Easements form part of our broader Real Estate Law. Do you have a question about an established or desired easement? Please feel free to contact us for clear advice.