Easement: Restrictions for property owners
An easement grants another property owner specific rights on one’s own property or restricts the owner’s rights on their own property. An easement is recorded in the land register and cannot be unilaterally removed.
Right of way and other common easements
An easement typically refers to one of the following third-party rights or owner obligations:
- Right of way: The obligation to allow a neighbor access to or passage over one’s own property to reach their property.
- Emergency access right: Similar to the right of way, but in this case, the owner of the servient property is entitled to compensation, whereas this is not necessarily the case with a standard right of way. The emergency access right ensures that someone can reach their property when no other access is available.
- Utility easement: The obligation to allow the installation and maintenance of utility lines, such as water, gas, electricity, or internet, for third parties on one’s own property.
- Service easement: The obligation to tolerate the installation and maintenance of utility structures, such as distribution boxes, on one’s own property.
- Building restrictions: Limitations on maximum building height, minimum distances, and similar regulations.
Easements must be exercised “reasonably”
The relevant legal text (BGB §1020) explicitly states: “When exercising an easement, the entitled party must take the interests of the owner of the burdened property into account as much as possible.”
But what does “reasonable” exercise mean, and what would be considered unreasonable? A court ruling (OLG Zweibrücken v. 3.5.2022 – 7 U 150/20) on a right of way provides an illustrative example:
In an existing right of way case, the obligated property owner slightly restricted access to the garages of the easement beneficiary by creating two new parking spaces for their own tenants.
This made maneuvering in and out of the five garages slightly more difficult, but not impossible.
The courts rejected the beneficiary’s lawsuit demanding the restoration of the previously better maneuvering conditions in front of their garages.
In essence, this means that the beneficiary of an easement cannot expect the property owner burdened with the easement to make things as convenient as possible for them.
On the other hand, deliberate obstruction would likely not be permitted, but having to maneuver a bit more when parking was deemed reasonable within the scope of “reasonable” easement exercise.
Modifying or removing an easement
An easement cannot be unilaterally modified or removed, at least not without a court ruling. The following methods allow for modification or removal:
- By mutual agreement between both parties, i.e., the owners of the two affected properties. No notary is required for this.
- Expiration of the validity period: If the easement was time-limited, it expires upon reaching its end date.
- 10-year verifiable non-use: If the burdened property owner can prove that the beneficiary has not exercised their easement rights for at least 10 years, they may apply for its removal.
- Removal by court order: If the easement has lost its purpose due to significant changes in circumstances or has become unreasonable, a court may delete or modify it.
New easements can be agreed upon without a notary, but it is not recommended
In principle, an easement can also be established through a private contract, i.e., without a notary. While this saves notary fees, it has the following disadvantages:
- It only applies personally to the contracting parties and expires upon property sale.
- It is not recorded in the land register and therefore not visible to third parties.
- In case of a dispute, it likely offers a weaker legal position compared to a notarized contract with a land register entry.