1. Definition and features
According to Art. 103 WA, "a land easement is a burden imposed on a property called servient to the benefit of another, called dominant, which belongs to another owner." In reality, the easement is a right that belongs not to the dominant estate but to its owner, therefore it can rightly be described as a property right of limited authority over another’s property belonging to the owner of another property and representing a benefit for the use of this property.
As a type of property right, the easement is characterized by certain peculiarities. It is distinguished by the fact that the use of foreign property is always connected with the use of another dominant property. An easement is a relationship between the owners of two properties - the dominant property and servient property. On the other hand, the easement as an absolute individual right confers an obligation on any third party to refrain from interfering with the exercise of the powers of the holder of the easement. Subject of easements can only be real estate/land. To enable the establishment of an easement it is necessary to have two properties - one that is burdened with the easement, and one for use of the easement to be established. It is important however, despite the use, for the servient estate to continue to be used as intended and without limiting the rights of its owner.
The holder of an easement is the owner of the dominant estate. A feature of this right is that, being a property right, it goes with the property. If ownership of the property is transferred, then with it will pass in favor of the new owner. An easement is an ancillary limited property right.
Easements are complex individual rights whose substance is expressed in the powers of the holder of the easements. An easement includes the right to possession. Easement rights can be protected by both the claim under Art. 75 PA (against any violation) and petition claims such as the one under Art. 109 PA. Although they are ancillary rights, easements have relative autonomy and their own content which does not overlap with the ownership of the dominant estate. Easement rights in a sense include the right to use, but it is different from the limited right to use and the right to use as part of the right of ownership. The holder does not obtain the benefits of the foreign property, nor do they use it or gain yields therefrom. Where the easement rights are concerned, the right to act on the servient estate is a means of full exercise of the right to use on the dominant estate.
The easement confers a right to exercise actual powers over another's property. It can be expressed in a positive action on the servient estate - to draw water, to spend facilities, or to require the owner of the servient estate to refrain from certain actions.
The easement is an absolute property right that is enforceable against any third person. It is an indivisible property right. It is a proprietary burden on any part of the servient estate. Therefore, if the property is divided, e.g. upon inheritance, the easement remains over the entire property, i.e. on any part thereof. An exception to this rule is only the case when the easement was established as applicable to a specific area - e.g. on only one path from the property.
2. Types of easements
According to the terms of the constitution, easements can be legal and voluntary (contractual). Legal easements are established by a legislative provision. They entitle the owner of the dominant estate unilaterally to request the establishment of a specific easement from the competent national authority. The owner of the servient estate is obliged to bear the consequences, the burdens of the so incurred easement relationship. From this perspective, the right to request the establishment of a legal easement is a subjective right. Voluntary easements are established by the will of the estate owners. They freely specify the content of the easement, provided it does not contradict the imperative norms or morals.
Easements can further be positive and negative depending on the actions to be carried out on the servient estate. Positive easements give the right to carry out certain actions, while in the case of negative easements the holder does not impact the other person’s estate. They are only entitled to ask the owner to not carry out certain actions in their property.
The various types of easements are discussed below:
2.1. Easements under the SPA
Right to build temporary roads:
According to Art. 190 of the Spatial Planning Act (SPA), when according to a detailed development plan some regulated landed properties have face only on designed new streets before these streets have been opened, the municipality can make temporary roads ensuring access to the corresponding properties. Temporary roads can be made also in regulated and unregulated parts of the settlements, for which new detailed development plans will be created. The ownership of the parts of landed properties taken for temporary roads is preserved. The owners of the burdened property are indemnified for damages caused by the passing of temporary roads at the expense of the owners of the lots to be serviced by the temporary roads.
Art. 192 regulates a substantial easement of passage through foreign property: “right of passage through foreign land shall be established by a written agreement with notarised signatures." The parties are the owners of the "dominant" and "servient" property. The contract is the legal fact that gives rise to the easement of passage and is subject to registration in the Land Registry. Although there are no explicit rules for terminating the so established right, it may be considered as terminated by the expiry of the term or when the need thereof no longer exists.
As easement is also considered the right to lay branches of common networks of the technical infrastructure through other's properties (Art. 193 SPA), which is established with written contract between the owners of the landed properties or by order of the regional governor or mayor, which are also entered in the Land Registry.
2.2. Easements for the right of way under the Agricultural Property Protection Act (APPA)
The owner or user of agricultural land, which does not have access to a public road, may ask the mayor to allow them a right of way over the neighboring lands. The mayor appoints a committee to determine the place of passage, and the amount of compensation for the damage inflicted on the land. This is a true easement and includes not only the right of way, but also the possibility to build a road as specified by the commission. This easement is permanent and is terminated with when passage is no longer needed.
2.3. Easements for the right to lead water under Art. 112 Water Act
Art. 112 WA confers an obligation on every real estate owner to grant the right to lead water through the corporeal immovable thereof to anyone who or which has a permanent or temporary need of this. The right to lead water is determined by the needs of the owner of the dominant estate and results in suspension of the surface discharge (streamlet) or building pipelines and other facilities used for water suspension. Easements may be established in two ways - by agreement of the owners of the dominant and servient estates, and if no agreement is reached - with the permission of the authority under Art. 52 (1), item 3 WA, which has constitutive effect. In the latter case, the exercise of rights under the easement depends on the payment of compensation determined by the order that the owner of the dominant estate must pay the owner of the servient estate. The leading of water through another property must be carried out in a manner consistent with the surrounding landscape, taking into account the existing buildings and perennial crops. The easement holder must pay the price of the land, which will be taken as a result of the leading of water in the amount specified in Art. 113 (2) WA. An important obligation on the easement holder is that after termination of the easement, they must restore the original condition of the burdened property. The easement for the right to lead water belongs to the owner of the dominant estate. The owner of the servient estate in principle has no right to use the waters that pass through his property as a result of the exercise of the easement. However, the WA still allows for such an opportunity if they cover the deductible proportion of the costs of building and maintaining the equipment.
2.4. Easements under the Forest Act
The Forest Act governs the procedure for establishing the easement rights for laying of telephone, telegraph, radio and other lines and underground pipelines with section of up to 1500 mm, sewers, cables and other elements of the technical infrastructure. Establishment is initiated by the interested party, usually a company making an application to the State Forestry Agency, accompanied by the necessary documents. Territorial units of the SFA give an opinion on the request, and if it is positive, the President of the SFA issues an order establishing the easement. Typical of these easements is that the price is paid by the holder of the easement - i.e. for consideration. Based on the enacted order, after payment of the due charges, the President of the SFA signs a contract for the establishment of the respective easement.
2.5. Easements under the Energy Act
These easements are established in favor of energy companies for construction of energy facilities, their maintenance etc. Right of passage, transit, maintenance of energy facilities is in a sense an easement, insofar as it is necessary for the use of the energy plant which in this case is the "dominant land" and the easement obligation applies to the property owner (the servient), where the energy plant is located. These easements are not typical land easements - they are rather established with a view to facilitate the business performance of certain energy companies and are therefore close to the so-called personal easements, known in the past.