In the collective imagination when we talk about servitude we automatically mean la easement of passageunderstood as right of way on someone else’s property to access your own. But it can become a burden for the owners involved, which is why it is often thought about how to remove it. The easement is extinguished upon request by the owner of the servient land or that of the dominant land in the event that the passage is no longer necessary. The request for cancellation of the easement can be requested at any time and the owner of the servient land must return the compensation received.
What are right-of-way easements?
Easements of right of way are rights that allow a person to cross someone else’s property to reach your own. This type of right is part of a larger group called predial servitudewhich are essentially limitations or advantages imposed on one property for the benefit of another.
For a right of way to exist, it is necessary that they exist two pieces of land next to each other. These lands must belong to two different owners and are called “servant land” and “dominant land” respectively. The owner of the serving fund must accept a limitation on his use of the property, or suffer a loss of value or damage, to the benefit of the owner of the dominant background.
Easements of right of way can be established voluntarily through a agreement between the partsor they can be imposed by law or by a judge’s decision.
What does a right of way involve?
The right of way allows a landowner to cross another’s property to reach his own, but brings with it obligations, responsibilities and, in some cases, financial costs for both parties involved. Among the different aspects and implications we find:
- Access: the owner of the dominant land has the right to cross the servient land to reach his property. This is the fundamental principle of the right of way.
- Limitations: The servient land owner must allow passage to the dominant land owner, which may limit his or her use of the property. For example, it may be necessary to avoid building structures that obstruct passage or make crossing difficult.
- Maintenance responsibility: In some cases, the owner of the dominant land may be responsible for maintaining the road or right-of-way used to access his property, even if it crosses the servient land.
- Allowance: If the easement was created voluntarily, it may be expected that the owner of the dominant land must pay compensation to the owner of the servient land for the use of the passage. This compensation can be free or costly, depending on the circumstances.
- Changes: the right of way may be subject to modifications by agreement between the interested parties or at the request of one of the owners, provided that it does not cause damage to others. Such changes must be formalized and, if the easement is registered, noted in the land registers.
When do you lose the right of way?
According to the rules of the Civil Code, a right of way can become extinct for various reasons:
- Out of confusion: when the owner of the two funds becomes the same.
- By prescription: the right of way loses its place of being after 20 years of non-use.
- By natural expiration: if the contract is not renewed.
- Due to impossibility of use or lack of usefulness: Necessary alternative solutions are established.
How to prove the right of way?
A title deed or property writing may explicitly state the right of way as part of the rights associated with ownership. If the right of way has been formally established as an easement, this information will be provided registered at the property registry office or property titles. You can obtain a copy of these records to prove your right of way.
If the right of way has been negotiated between the owners of the land involved, there may be a contract or a written agreement documenting the right and the conditions associated with it. These documents must be kept as proof of right of way.
In some cases, the right of passage can be established through adverse possession, which is the right to acquire ownership of an asset through a continued and uncontested use for a certain period of time. If the right of way has been exercised openly and peacefully for a specific period of time as required by law, it could be demonstrated through adverse possession.
Can a right of way be closed?
Compared to the possibility of to close off land by a right-of-waythe owner of the servient land has the right to do so, for example by installing a gate. However, he is required to inform and provide the keys to the gate or barrier to all those who have right of way.
It is important to note that if an easement, including a right of way, is not registered, it may not be recognised, for example in case of sale of the property. However, the sale does not automatically cancel easements attached to the properties and not to the owners, except in the case of unregistered voluntary easements.
How to prevent passage into the owner’s backyard?
If you decide to permanently prevent the passage, various paths open up starting from what may appear to be the simplest negotiation with the dominant owner and try to make a alternative passage that does not damage either party.
If it’s one forced right of way, it cannot be modified as long as the conditions remain unchanged, for example until another access route to the Caio fund is created.
For the easements of voluntary passage, however, it is possible to make changes either with the consent of both owners or at the request of only one, provided that it does not cause damage to others. If the easement is registered in the land registers, any changes must be noted in the same way.
If no agreement is reached spontaneously, it is possible to proceed legal channelsto the detriment of the costs of the legal process.
