It can occur that someone is entitled to certain rights on a real estate which is owned by someone else. Such a right is for example the easement, which is a right in rem, according to which the posessor of a real estate is entitled to use someone else's real estate to a limited extent, or may demand the posessor of a real estate burdened by an easement to refrain from some conduct.
The object of the easement
Easement can only burden real estate. The real estate for the benefit of which the easement is registered, is referred to as the dominant real estate, while the real estate burdened with the easement is referred to as the servient real estate. In every case at least two real estates are involved in all easements, which are adjacent in most cases, or at least close to each other, because the easement is an "auxiliary right" of the dominant real estate, and this is only possible between those real estates that are situated close to each other. Of course, easements can burden real estates mutually as well. Easements are not attached to the owners of the real estates in person, so it is not a legal relation existing between the owners, but it is a right attached to the given real estate, the practicing of which can happen by the posessor of the dominant real estate, so not only the owner of the dominant real estate can exercise the rights originating from the easement, but also that person, who posesses the dominant real estate on other ground (for example: as a lessee, usufructuary, etc.).
Types of the easement
There are two types of easements: the positive and the negative easement. The positive easement allows the posessor of the dominant real estate to behave in such a way, how he/she would not be entitled to withouth the rights originating from the easement. The negative easement restricts the activity of the posessor of the servient real estate to the benefit of the posessor of the dominant real estate. Easement can be established to allow rights of passage, water rights, building of cellars, erecting of line posts, supporting of buildings, or to some other purposes which is beneficial to the party entitled. The easement is established "ex lege", when some land is not connected to an appropriate public road. In this case according to § 167 of the Hungarian Civil Code, the neighbours are obliged to tolerate the obligee crossing their land.
Establishment of the easement
The easement can be established by contract, by provision of law, or by decision of a court or by resolution of an authority. Easement by contract comes into being upon registration in the land register. Charging for countervalue is only allowed for the establishment of the easement, not for praticing the rights. In the contract it is not enough to agree in the establishment of the easement, the character, content and extent of the easement has to be exactly specified. Apart from the above mentioned cases, easement can be established by means of adverse posession as well, if the owner of the servient real estate does not protest against the practicing of the easement rights for ten years. This is not the case, if this right is allowed to be exercised as a favour, or it is exercised according to a permit valid until withdrawal.
The easement restricts the rights of the posessor of the servient real estate, so this right can only be exercised having respect for the interests of the posessor of the servient real estate. If some device is needed for the practice of the rights (for example: gate, boardwalk, pillar etc.), the costs of the maintenance between the parties are divided according to the agreement, or in case of lack of agreement, in proportion to the usage.
The termination of the easement
The easement is terminated by the court, if it is not necessary any more for the usage of the dominant real estate. Otherwise, the easement right will exist for an unlimited period, unless the real estate perishes, or is united with the servient real estate.
The easement will not discontinue if the owner of the dominant and servient real become the same person. In this case the easement rights will be interrupted until the real estates are owned by different persons again. The easement discontinues if the entitled party have not been exercising this right for 10 years. This fact shows that easement is not needed for the usage of the dominant real estate.
The easement discontinues, if the servient real estate, or it's component or fixture on which the easement was established perishes.
The easement can be terminated by the agreement of the owners. This can happen for free or for countervalue. In case of an easement right registered in the land register, the deletion of the easement has to be arranged.
January 2007 dr. Borbala Fekete
* This Newsletter is for information only. Owing to its size, it is not comprehensive and does not qualify as advice