Limited rights in rem, part 1. What are easements, and can I sell a property burdened with one?
An easement is one of the most common and at the same time most underestimated encumbrances on a property. Many owners treat it as a formality of no great importance — until they try to sell, or until it turns out they never knew it existed at all. In this article, the first in a series devoted to limited rights in rem, we explain what easements are, how they arise, when they appear in the land and mortgage register and when they do not, and how they really affect whether a property can be sold and at what price.
What limited rights in rem are
Limited rights in rem give the holder direct authority over someone else’s property, effective against anyone who later acquires it, but narrower than full ownership. Polish law applies the principle of a closed catalogue of such rights, which means that no new type of encumbrance can be invented by contract if the statute does not provide for it. Under Article 244 of the Civil Code, the limited rights in rem are: usufruct, easement, pledge, the cooperative ownership right to premises, and mortgage. In this article we focus solely on easements; we will return to the remaining rights on that list in the parts to come.
Three types of easement
The Civil Code distinguishes three types of easement, differing in whose benefit they operate.
- Land easement. It burdens one property (the servient one) for the benefit of the successive owner of another, specific property (the dominant one) — for example a right of way across a neighbouring plot to a public road.
- Personal easement. It burdens a property for the benefit of a specific natural person, named individually, rather than for the benefit of a dominant property. The most common example is the right to live for life in part or all of the premises.
- Transmission easement. It burdens a property for the benefit of a utility operator (for example a supplier of electricity, gas or water) whose transmission equipment — pipes, poles or power lines — is located on the property and who must have access to it for maintenance and repairs.
How easements arise
An easement can arise in several ways. Most often by agreement between the owner of the property to be burdened and the person entitled, with the declaration of the owner of the burdened property having to be made in the form of a notarial deed. It can also arise by court decision, for example where a court establishes a right of necessary way for a property with no access to a public road. Finally, a land easement can be acquired by adverse possession, but only where it consists in the use of permanent and visible equipment, such as a surfaced access road or a line running across the plot. Adverse possession requires twenty years of uninterrupted use in good faith, or thirty years in bad faith, and the fact of acquisition must be formally confirmed by a court in separate proceedings.
When an easement is, and is not, visible in section III of the land and mortgage register
Entering an easement in section III of the land and mortgage register is declaratory, not constitutive. This means the easement exists and is binding from the moment it arises, regardless of whether anyone took care to disclose it in the register. In practice the entry is most often missing in two situations: where the easement arose by adverse possession and, after obtaining the court order, nobody applied for it to be entered; or where the easement was established by agreement many years ago and nobody simply dealt with the formalities.
The absence of an entry has a serious consequence, closely tied to what we wrote in the previous article about the land and mortgage register and the warranty of public credibility: if the property is sold and a buyer acting in good faith could not have learned of the existence of an undisclosed easement, they may acquire the property free of that encumbrance. This is one of the few cases in which the lack of formal disclosure of a right genuinely works against the person entitled to it, rather than against the buyer.
When an easement can be deleted
An easement does not as a rule last for ever, although deleting it from the land and mortgage register always requires a specific legal basis.
- Waiver by the person entitled. The holder may voluntarily waive the easement, usually by a declaration made before a notary, on the basis of which an application to delete the entry is then filed with the land and mortgage register court.
- Expiry through non-use. Under Article 293 of the Civil Code, a land easement expires if it is not exercised for ten years.
- Judicial removal against payment. The owner of the burdened property may apply to the court to have the easement removed if, as a result of changed circumstances, it has become particularly onerous for them and is not necessary for the proper use of the dominant property. The court then awards appropriate compensation to the person entitled.
- Death of the holder in the case of a personal easement. A personal easement is non-transferable and cannot be inherited, so it expires at the latest on the death of the person entitled. Deleting it from the land and mortgage register nevertheless requires a formal application together with a copy of the death certificate; expiry by operation of law does not remove the entry automatically.
How the sale of a property affects an easement
Selling a property burdened with an easement does not, as a rule, extinguish that encumbrance. A land easement and a transmission easement are rights attached to the property rather than to the person of its owner, so they “follow” the property through every subsequent sale: the new owner of the burdened property must continue to respect it, and the new owner of the dominant property automatically acquires the right to use it, with no need to transfer that right separately.
A personal easement, by contrast, is inseparably tied to the particular person entitled. Selling a property burdened with such an easement has no effect on it whatsoever; the new owner must respect it exactly as the previous one did, until the holder’s death. The only exception to these rules is the situation described above: an easement not disclosed in the land and mortgage register and a buyer acting in good faith.
How much an easement reduces value: sometimes slightly, sometimes almost to zero
How much an easement reduces a property’s value depends above all on how severely it restricts the real use of it. A narrow strip of transmission easement under a power line, running across the corner of a large plot, or a neighbour’s right of passage along a narrow path beside the fence, usually reduce the value only slightly, in proportion to the usefulness lost on that fragment.
The picture is entirely different with a personal easement covering all or most of the premises — for example a lifelong right of residence for an elderly person. For an ordinary buyer on the market such a property is then practically unusable for as long as the holder exercises the right, so its market value can fall close to zero. In practice only specialist buyers are able to make a realistic offer, factoring into the valuation the age of the person entitled and the statistically expected remaining duration of the easement.
How we can help
At Remedy we buy properties burdened with easements of every kind — both those that affect value only slightly and those that, for a typical buyer on the market, effectively rule the property out as something to purchase at all. We price each case individually, taking into account the type of easement, its real effect on the use of the property and, where necessary, the age of the person entitled. If your property is burdened with an easement and you are wondering whether it can be sold at all, write to us and we will look at it together.
This article is for general information and does not constitute legal advice. Assessing a particular easement, including whether it can be deleted or has expired, requires reviewing the contents of the relevant land and mortgage register and the circumstances of the case.