Real Servitude and Acquisition by Prescription: Obtaining the Right to Use a Path on Adjacent Land

It is not uncommon for a path to cross through adjacent land to access a property, without explicit agreement between the neighbors or owners of the adjacent land. The path may have simply formed over the years through continuous use.

The use of a path on adjacent land can be contractually agreed upon (e.g., through a servitude agreement and registered servitude in the land register), but this is not necessary for the existence of the right to use the path. Issues can arise, for example, when there is a change in land ownership, maintenance, or payment of a fee for using the path.

The right to use a path on adjacent land can also be acquired without an explicit agreement with the owner of the adjacent land, through acquisition by prescription, which is a specific way of acquiring a servitude right.

Real servitude is the right of the current owner of the dominant land to use or exploit another person's land (servient property) or demand that the current owner of the servient property refrain from or allow certain actions that they would otherwise have the right to carry out on their own property.

It is advisable for neighbors to agree on the path mutually (route, manner of use, maintenance, fee) and enter into a servitude agreement based on which the servitude is registered in the land register.

Even if a path has long existed but the servitude is not registered in the land register, owners of adjacent land can still reach a subsequent agreement on the manner of using the path, maintenance, payment of a fee, etc. If an agreement cannot be reached, and disputes arise among the owners, the matter should be resolved in court.

This may happen if the servitude was acquired through prescription, meaning that the owner of the dominant property has actually exercised the servitude in good faith for ten years. Good faith is considered if the owner could not have known that they were using a path on someone else's land. If they were aware that the path was located on another person's land, prescription can occur after twenty years, provided that the owner of the servient property did not object.

For legal matters related to establishing the existence of a servitude, concluding a servitude agreement, registering the servitude on the property in the land register, path use, payment of a fee, contact a real estate attorney to find the most suitable solution for your case.

Limitations on the Acquisition of Servitude by Prescription: What You Need to Know Before Acquiring a Servitude Right

The acquisition of a servitude right by prescription is not possible if the owner of the dominant property has abused the trust of the owner or immediate possessor of the servient property, if the servitude has been exercised through force or deception, or if the servitude was allowed with the right to revoke.

The right to demand that the owner of the servient property refrain from certain actions that they would otherwise have the right to carry out on their property (negative servitudes) cannot be acquired by prescription.

In these cases, such as servitude of a path on adjacent land, it is not possible to acquire the servitude right through prescription based on the law.

For legal matters regarding prescription, contact attorney Jurij Kutnjak to ensure you make the right choice for your case.

Lawsuit to Determine or Terminate a Servitude

If the conditions for acquiring a servitude by prescription are met (e.g., good faith, actual exercise for 10 or 20 years) and the owner of the servient property disputes its existence, the holder of the servitude right can file a lawsuit to have the court determine the existence of the servitude (lawsuit to determine the existence of a servitude).

If the servitude path is no longer necessary, the owner of the servient land has the right to file a lawsuit to terminate the servitude and have it removed from the land register.

If you need legal assistance in the process of establishing a servitude path, contact a real estate attorney to find the most suitable solution for your case.

Enforcement of a Servitude

A real servitude must be exercised in a way that minimally burdens the servient property, such as the land on which the servitude path is located.

If any action is required for the exercise of the servitude (e.g., maintenance of the servitude path), the costs of maintenance are borne by the owner of the dominant property, unless otherwise agreed.

For legal assistance in arranging the enforcement regime of a servitude and asserting rights in a judicial procedure, contact attorney Jurij Kutnjak to ensure you make the right choice for your case.

Establishment and Requirements for an Easement of Necessity and Its Registration in the Land Register

An easement of necessity is a special form of real servitude determined by the court, usually in a non-contentious procedure. If a property does not have the necessary connection for regular use, such as a connection to a public road, public infrastructure (utilities and other networks), or if such a connection would involve disproportionate costs, the owner of the property has the right to request the establishment of an easement of necessity and its registration in the land register before the court.

The requirements for establishing an easement of necessity are as follows:

• The property does not have a connection to a public network (road, utilities, etc.), or it does have a connection but it is unsuitable for regular management and use of the dominant property.
• The easement of necessity does not prevent or significantly hinder the exploitation or use of the land on which it is intended to be established,
• The establishment of an easement of necessity results in greater benefit for the dominant land than the damage caused to the burdened property,
• The beneficiary of an easement of necessity is obligated to pay the owner of the servient property appropriate compensation, unless otherwise agreed.

 

For legal assistance in arranging an easement of necessity and asserting rights in a judicial procedure, contact a real estate attorney to find the most suitable solution for your case.

How an Apartment Easement Affects the Sale and Ownership of Real Estate?

An apartment easement is a type of personal servitude on real estate that grants the holder the right to use another person's apartment, house, usually until their death and free of charge. The establishment of an apartment easement often occurs in gift or sale contracts between family members, where the contracting parties agree that the donor or seller retains the right to reside in the donated or sold apartment until their death (e.g., grandparents or parents retain the apartment easement in the apartment or house they reside in). The essence is that the holder of the easement does not have to fear being left without shelter.

While an apartment easement does not restrict legal transactions with the apartment (e.g., sale, unless expressly agreed upon as a restriction on disposition), it still represents a burden that actually complicates the sale of the property to a third party because the apartment easement is transferred with ownership.

If you need legal assistance in arranging an apartment or house easement, contact attorney Jurij Kutnjak to ensure you make the right choice for your case.

Conditions for the Termination of Real Servitude: Legal Transaction, Court Decision, Changed Circumstances

A servitude can be terminated based on a legal transaction between the owners of the dominant and servient properties and by removal from the land register. It can also be terminated by court decision or by law.

If a servitude becomes useless or the circumstances under which it was established significantly change, the owner of the servient property can file a lawsuit to request the termination of the servitude.

A real servitude also terminates due to non-exercise if the owner of the dominant property fails to exercise it for three consecutive years, and the owner of the servient property opposes its exercise.

If the dominant property is divided, the servitude remains in favor of all its parts. If the servient property is divided, the servitude remains only on the parts where it was exercised.

If you need legal assistance in arranging a servitude path or its termination, contact attorney Jurij Kutnjak to ensure you make the right choice for your case.