Easements can present significant problems for the property owner. What should you look for when inspecting to avoid inconvenience? What are the different types of easements?
What is a real estate easement and how can it affect you?
In a nutshell:
- An easement is a legal restriction on the owner that obliges him either to endure something or to perform a certain action for the benefit of another person.
- There are several types of easements, some of which are not registered in the Land Registry.
- Easements can significantly affect the value and use of a property. It is therefore important to check them thoroughly before acquiring them.
What is an easement?
An easement on real property is a legal restriction on the owner that serves the benefit of another person. The owner is obliged to endure something, refrain from a certain activity or perform an act. There are several types of easements that may be beneficial to you.
Examples of easements you may encounter
Easement of use and easement of flat
The term "easement" refers to the right to use or share certain real estate with selected persons. In the context of real estate, it usually means the right to use a specific part of a property, such as a flat, without claiming ownership of it. These rights are often secured for family members, such as parents or grandparents, who may live in the space until their death.
If we're talking about easement of the apartment, it is the right of occupancy, not the right of ownership of the property. Such an encumbrance may restrict property rights in certain situations, for example when selling or financing a property. Banks do not usually accept properties with easements as collateral.
In some cases, the encumbrance may be registered in the Land Registry even after the death of the beneficiary. In this case, it is necessary to submit a death certificate and request the deletion of the encumbrance, which can take some time. If you are planning to buy a property with a mortgage, you may need to provide the bank with a certificate of deletion of the encumbrance as part of the loan application.
Walking and driving easement, road easement
Under the New Civil Code, an individual has the right to request access to his or her own land, which is referred to as a "necessary way." The court decides on its establishment. Except for some specific easements, the property owner is not obliged to conclude an easement agreement. If there is no public access road to your property (for example, a road owned by the municipality or county), you have the right to apply for an easement. These rights can arise in various ways: by contract, by court decision, by will, by agreement between heirs or by inheritance. A similar right is an easement, which includes the right to walk, drive or create access roads and paths.
Burdens of survivorship and exchange
This type of legal restriction is similar to a usufruct, sharing some basic rules and principles. It is most often applied when the owner of the property plans to donate or sell his property, which is usually the case when the property is transferred to descendants. In such a transfer, the owner may impose a condition that he or she wishes to continue to enjoy all or part of the property. This allows the original owner to retain the right to use the property until his or her death.
Easement by deed
The easement specified in the deed may be of a varied nature and include different types of encumbrances or a combination of several of them. Often it is a specific encumbrance that cannot be classified in the categories normally defined by the cadastral authority, or a set of several encumbrances listed in one deed. Although in some cases easements may have a minimal effect on the value of the property or its usability, in other cases they may impose significant restrictions. It is important to be aware of these potential impacts when buying or selling a property, as they can significantly affect your rights and responsibilities as an owner.
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Easements can have a significant impact on the value of a property. Contact us to make sure you don't make a mistake.
Division into easements and real burdens
In the legal system, there is a distinction between easements and real burdens. An easement is a passive obligation where the owner of the property must tolerate or refrain from certain matters. An example would be a situation where a necessary road runs across your property to another property. Real easements, on the other hand, involve an obligation that the property owner must actively perform. For example, a parent gifts property to his or her children, but the deed of gift stipulates that the children must help him or her with cleaning and shopping until the parent's death, and must also let the parent live in the property.
What to check on the extract from the Land Registry?
The Land Registry records easements and servitudes on individual property listings. This listing consists of several sections. Easements may be listed in Section B or C. If the easement is in Section B, it means that it was established for the benefit of a specific property. Conversely, if it is listed in section C, the property is encumbered by the easement, which means you will have to tolerate it. So pay close attention to Part C, as overlooking any easement could lead to unpleasant consequences.
Easement that is not registered in the cadastre
In some cases, the easement may not be registered in the Land Registry. This situation is often associated with the period of the previous regime and utilities. Even if there is no mention of such an easement in the cadastre, it may still be taken into account in legal disputes. This means that it is important to have any property thoroughly inspected by experts before buying it to avoid unwanted complications.
How to remove an easement from the Land Registry?
If you want to get rid of an easement, you must submit an application to the Land Registry stating the reasons why the easement or servitude should be cancelled. The application usually costs CZK 2,000.
When can an easement be extinguished?
- On the basis of a decision of the competent authority
- According to the legislation in force
- Death of the person entitled to the easement
- Termination of the beneficiary in the case of a legal person
- By fulfilling the termination condition, which can be resolved by signing a termination agreement with the counterparty
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