Easements
An easement is a right to use someone else's land without owning it yourself. An example of an easement is the right of way, whereby your neighbours (as owners of the servient plot) have the right to walk across (part of) your plot (the servient plot), or vice versa. For simplicity's sake, we limit ourselves here to the relationship between neighbours. If an easement is established on your land, you have some obligations towards your neighbours, but they also have obligations towards you. How the easement should be exercised is included in the deed of establishment. If this has not been included, the way in which the easement was usually used should be followed.
An easement can be created by establishment, prescription or imposed by law. Establishment requires an agreement that must be recorded in a notarial deed. This deed must be registered in the Land Registry, so that the easement is also known to third parties. In the event of a sale (transfer of ownership), for example, the easement continues to exist. The easements are included in deeds of delivery (title deeds) of your house or that of the neighbours. if you want to know whether easements have been established on your plot or whether you yourself may use someone else's plot, you can request copies of the deeds establishing the easements via the Land Registry.
An easement must be exercised in the least onerous way possible and must not cause nuisance to the plot to be used.
Can I change my parcel?
With a right of way, this is your plot and in principle you may do whatever you want with it, provided your neighbours can exercise the easement. You are not allowed to take measures that violate the easement and prevent others from using your property. For example, if you want to erect a fence, this is allowed, but you must take into account the fact that your neighbours can still use the easement. You are also entitled to replace the tiles of the footpath with gravel if this does not impede your neighbours' accessibility.
Can I close off my property?
As the owner of a yard - even if the yard is encumbered with a road easement - you are authorised to close it. You may not take any action that violates the easement and prevents the other person from using your yard. You must therefore ensure that your neighbours maintain unobstructed access to your yard in order to exercise the easement. This means that you must allow your neighbours to access the easement at any time, and without depending on your direct cooperation each time, in order to exercise the easement, by, for example, giving your neighbours a key
Can I get rid of an easement?
There are a number of ways to get rid of an easement, but this cannot be done unilaterally. If problems arise in relation to the exercise of the easement, it is wise to first discuss this among your neighbours. An easement can be lifted by agreement between the parties. Alternatively, you can ask your neighbours for payment for the easement (retribution within the meaning of Article 5:70 of the Civil Code). If nothing about payment is fixed in the settlement deed, your neighbours can refuse payment; you cannot force them to pay. If you can agree with your neighbour on the modification or even removal of the easement (against payment), you can have this recorded in a notarial deed and have it registered in the Land Registry. If only personal agreements are made, those agreements will only bind the two parties, but the easement will simply remain in place. In that case, successive owners can use it again.
Should a dispute arise that you cannot resolve between you, you may be able to go to court. The court can cancel an easement on the basis of unforeseen circumstances (ex Article 5:78 of the Civil Code) or if the owner of the dominant estate no longer has a reasonable interest in exercising the easement and it is unlikely that the reasonable interest will return. For example, in the case of a right of way easement, the owner of the dominating easement in principle no longer has a reasonable interest if he has a reasonable alternative available to reach the public road. Alternatively, the claim could be based on abuse of the power to exercise the easement.
My neighbours change their yard such that they have to make more intensive use of my yard, is this allowed?
An easement may not be aggravated by changes in the condition of the prevailing yard, unless the deed of establishment shows otherwise. In case of aggravation of the easement by your neighbours, you can (if consultation with the neighbours did not work) request the court to modify or cancel the easement (art. 5:78 sub a Civil Code). There must then be unforeseen circumstances within the meaning of that provision. If your neighbours themselves have the possibility to make an adjustment in their own yard so that the easement is not aggravated, that is the most appropriate option.
