It is not uncommon, especially in rural properties, for their owners to make agreements with each other: specifically for the convenience of each one, they can grant real rights to each other, such as allowing one to pass through the other’s property or to draw water from it, etc. This entire legal phenomenon is called easement and, as a limited property right, it is regulated by law. Below we will examine it in detail, with emphasis on the rights and obligations of the holder of the easement.

1. What does the term easement mean?

When we use the term ‘easement’ in real property law, we mean the limited property right that exists on someone else’s property (the serving property) and which provides some benefit to the holder of the easement. A characteristic of easement is that, since it extends to property, it encompasses both the components and the attachments of the property in case of doubt, unless otherwise agreed.

A basic rule is also that easement cannot require the owner of the serving property to perform an act= the only thing that can be agreed upon is for the owner of the serving property to tolerate some act of the holder of the easement or to refrain from some act which they would otherwise have the right to perform.

Additionally, easement can only be established on someone else’s property, meaning the holder of the easement cannot establish it on their own property, as this would not be logical. As we mentioned above, easement can only be established on property (with some legal exceptions), unlike pledges which exist only on movable property.

2. Into which categories are they divided?

Depending on their content and the way they are manifested, easements are divided into:

• Positive easements, where the holder of the easement can perform certain acts on the property on which the easement exists (e.g., can pass through it, convey water through it, etc.).
• Negative easements, where the holder of the easement can prohibit the owner of the property burdened with easement from performing certain acts that they would normally have the right to perform (e.g., prohibiting the construction of an additional floor to avoid blocking the view of the holder of the servitude, etc.).
• Real easements, which are so closely connected with the property they serve that they follow its fate, while the person of the owner/holder of the easement is irrelevant=if the property is transferred to another, the easement will also transfer.
• Personal easements, which are instead closely connected with the person of their holder such that if this person dies/transfers them to another, they are extinguished. A characteristic example of such a easement is usufruct, which we discussed in another of our texts.

3. How is an easement created?

The most well-known way to establish an easment is through an agreement between the grantor and the holder of the easement. Since easements involve real property, the legal requirements for real property must also be followed. That is, the grantor of the easement must be the owner of the property on which the easement is to be established, and the act of establishing the easement must be drafted in a notarial document and recorded in the relevant land registry/cadastre where applicable.

Another way to establish an easement is through inheritance upon death. If the testator was a holder of an easement on another property while alive, they can state in their will that their heirs will continue to be holders of the easement and exercise it if they wish. The same applies in the reverse case, where the testator had the obligation to tolerate an easement=upon their death, their heirs are automatically required to respect the servitude right of the current holder, assuming the legal position the deceased had before their death.

Finally, a practical way to legally create an easement right on a property is through adverse possession. As mentioned in another text of ours, adverse possession must be possible on the property, and the person exercising the servitude right must perform the corresponding acts that legally demonstrate they are acting as if they were the rightful holder of the easement (e.g., clearing the path on a plot where they wish to acquire a right of way, just as they would if they had initially acquired the servitude). The deadlines are the same as those generally applicable in adverse possession, i.e., 10 years for regular adverse possession (if there is a legal or presumed title) and 20 years for extraordinary adverse possession.

4. What are the rights of the holder of the easement?

The holder of the easement on another property has certain powers granted by law, which they can exercise if they wish. Thus:

• First, the law does not include specific powers of the easement holder=these will be defined in the contract signed by the parties or by the nature of the specific easement if it has been established by law.
• For example, a water drawing easement may include more actions and constructions than a simple right of way easement on a neighboring property, which may be exercised unobstructed and without any constructions possibly.
• The rule is that the holder of the easement must exercise it prudently on the serving property; not using it more than necessary to satisfy their needs and not excluding others from exercising their rights on the property, etc.
• As we will see below, the holder of the easement has the right to have their servitude respected and protected, and for this purpose, they can use the corresponding legal actions provided by the law.

5. And the obligations of the servitude holder?

The obligations of the easement holder correspond to the rights of the owner of the serving property, that is, the property on which the easement exists. As far as the owner is concerned, they have the following rights under the law:

• They can also use the property on which the easement exists unless this right has been excluded by the parties’ agreement, or if the property is not sufficient for use by both the easement holder and the property owner simultaneously.
• They can grant another easement on the serving property, but in this case, what is crucial is which easement has been registered first in the relevant land registry/cadastre to resolve any potential conflicts between multiple servitude holders.
• The owner of the easement property can request the easement holder, if a structure has been built for the needs of the easement, to maintain and keep it suitable at their own expense (the easement holder’s expense). However, this regulation is dispositive law, and thus different agreements can be made.
• The owner of the serving property can request a change in the manner in which the easement is exercised on the serving property if it is particularly burdensome for them.
• However, to request the above, the purpose for which the easement was established must be achieved with the new manner of exercising it, and the expenses required for the modification of the easement must be pre-paid by the owner of the serving property.

6. What happens in case the easement is infringed?

It is not uncommon in practice for the owner of the serving property or a third party to infringe upon the easement right that exists on it, either by performing acts that obstruct its proper exercise or by not tolerating acts they are obliged to tolerate due to the easement.

Thus, the holder of the easement can file the so-called ‘action for acknowledgment of easement,’ which aims to recognize their easement on the serving property, to remove the infringement, and to prevent similar infringements in the future. To file this action, the holder of the servitude is not required to possess the property for which the servitude was established=it suffices to have ownership of it. It is understood that if multiple individuals are holders of the easement, each of them individually has the right to file this action if an infringement exists.

An alternative to the above is the so-called ‘publician action for acknowledgment of easement,’ which can be filed by someone who possesses the property with the qualifications of adverse possession to acquire an easement right on it in the future=they are not yet a holder of the easement right and would normally not be able to file any action if it were not for this specific one. A basic prerequisite for this action is that the person infringing the easement right on the dominant property does not have any legal or presumed title to it (e.g., some contract even if invalid or some act of registration in the cadastre, etc.). If the infringer possessess a legal title, this action will not be accepted.

7. How are easements generally extinguished?

With properties constantly changing hands and transactional needs increasing, it is clear that easements also have an expiration date. For this purpose, the law has provided certain (general) reasons for which an easement ceases to exist on a property, always for the future, i.e., without retroactive effect. Thus, easements can be extinguished:

• If the property is compulsorily expropriated, as in this case all property rights that existed on it are extinguished, and the only thing the holder of the easement can request is compensation from the new owner of the property (mainly it will be the State here).
• If the property is sold at auction, a topic we will see further below, the buyer will also acquire it free from property rights and encumbrances.
• If the easement was established with a suspensive or resolutory condition, and the condition occurs or, conversely, does not occur, then the easement is extinguished. In the case of a suspensive condition, since the establishment of the easement depends on whether a future and uncertain event occurs, if this event never occurs, the easement never actually existed to be extinguished.
• If a third party acquires ownership of the serving property through adverse possession (regular or extraordinary), then, when the conditions for adverse possession are met, they will acquire it free from property encumbrances, thus without the easement, provided that they did not know or were not grossly negligent in knowing that a servitude existed on the property.

8. Are there more specific reasons beyond the aforementioned ones?

Since easements, as property rights, require cooperation between two or more property owners, and typically differences and tensions arise between them, the law has also provided for some additional reasons for which an easement established on a property can be extinguished. Therefore, an easement can be extinguished specifically:

• If the holder of the easement renounces it, either through a contract that must be made in a notarial document or through a will accordingly. It is important that for the renunciation to be valid, the aforementioned formalities must be observed, and the renunciation document must be registered at the land registry/cadastre.
• If the property on which the easement exists is destroyed (e.g., by earthquake/flood, etc.). In the case of partial destruction, the easement does not completely extinguish but remains valid on the undamaged portion of the property and thus remains functional. The same applies if the property for which the easement exists is destroyed, as the easement will no longer have a reason to exist.
• If the holder of the easement acquires ownership of the property on which the easement exists, since both statuses will now exist in the same person, and the easement will no longer have a reason to exist for the two properties. If the holder of the easement acquires a part of the serving property and not the whole, the easement continues to exist on the remaining part.
•  If the holder of the easement does not exercise the rights provided by the easement for 20 consecutive years. The reason for the non-exercise of the easement is irrelevant. However, the easement must not be exercised at all—if some of the powers provided by it are exercised and others are not, the easement continues to exist and is not extinguished.
• If the easement cannot be exercised on the serving or the dominant property for actual or legal reasons. The reason for which the easement cannot be exercised is irrelevant. An exception to the above is when a third party infringes upon the easement right, in which case it is not considered an inability to exercise the easement since the corresponding action can be taken against the infringer.

9. What happens if the property is auctioned?

It is possible for a property to be auctioned and for third parties to have acquired servitudes on it. Regarding the legal fate of these easements, there are several provisions in the law. Here we will mention the most important ones and those that are of most interest in practice. Thus, the following:

• Firstly, the highest bidder will acquire the property free from real burdens, thus without the easements, because the law explicitly provides for this.
• The third parties who are beneficiaries of the easement must be informed as promptly as possible about the auction of the property.
• This is so they can exercise the objection provided by the law, in order to seek judicial protection.
• With this objection, they can request recognition of the existence of the easement on the property and either to increase the auction price for the acquisition of the property, which will naturally include the servitude that exists on it, or to find another solution for the easement, such as establishing it on a neighboring property if possible, with modified content according to the prevailing conditions.
• Thus, the holder of the easement can initially participate in the distribution of the auction proceeds and be compensated for the damage suffered due to the abolition of the easement they had.
• For all the above to happen, the easement must have been legally established, and the holder of the easement must ensure that they exercise the corresponding objection and stay informed about the progress of the auction.

10. Have you heard of habitation?

Although many have not heard of the specific term, it is a well-known limited real right concerning properties. Its concept is simple—the owner of the property grants an easement to someone, and that person has the right to reside in the property where the easement was granted, which can be an apartment/building/maisonette, etc.

It is important to emphasize that if the owner of the property grants an easement of habitation to someone else, they will not be able to reside in the property burdened with the easement, otherwise it will be a ‘classic’ easement like those mentioned above. Additionally, if habitation is established on a property, it can only be used for residential purposes and not for commercial lease, where different legal rules and procedures apply.

Regarding the right of the person who is the holder of the easement of habitation in the property, this is inalienable, non-inheritable, and non-seizable as explicitly stated by the law. Because habitation as a right is quite similar to usufruct, the provisions of the latter apply analogously to legally regulate the easement of habitation and the disputes arising between the parties.

Thus, habitation can only be established through a notarial document that will be registered at the corresponding land registry/cadastre, through a will, and through adverse possession (regular or extraordinary). Finally, it must be emphasized that only person (and thus not a company/association, etc.) has the right to reside in the property, who can be accompanied by their family members, if any.

Next to the client and his needs.

Athina Kontogianni-Lawyer

The above does not constitute legal advice, and no responsibility is assumed for it. For more information, please contact us.