What is an easement?
An easement (erfdienstbaarheid) is a burden on a plot for the benefit of another plot with a different owner, such as a right of way for the neighbour or a ban on building. It belongs to the plot and passes to the buyer on a sale. You find it in the title deeds, but a visible easement can also arise without a deed.
What the law says
The Civil Code defines an easement as a burden on a property, the servient land, for the use and benefit of someone else’s property, the dominant land. It consists of a duty to refrain from a certain use, or to allow a certain use. An easement is visible if it shows through lasting works or through regular activity that leaves traces on the servient land.
Party ownership (mandeligheid) is not an easement. It is compulsory co-ownership of a dividing wall, a hedge, a ditch or a fence; it is presumed on the boundary. Nuisance between neighbours is also separate from easements.
A purchase involves other points too, such as the pre-emption right and finding the owner of a plot. What a report on an address costs is listed under Perceelscan pricing. You can work out the taxes on a purchase for free with the registration duties calculator and the property tax calculator.
Examples
- A right of way: the neighbour may cross your plot to reach his garden or garage.
- The statutory right of way, for a plot with no access to the public road. The court sets the least harmful route, against compensation. It ends when it is no longer needed.
- Windows and views: windows with clear glass, balconies and terraces at least 1.90 m in a straight line from the boundary, unless the neighbour agrees or the opening has been there for at least thirty years.
- Trees at least 2 m and other plants at least 0.5 m from the boundary, unless a contract says otherwise or they have stood there for thirty years.
How an easement arises and ends
An easement arises:
- by title, such as a deed: any easement can arise this way;
- by prescription, only if it is visible: after ten years, or thirty years if whoever exercises it acted in bad faith at the start;
- by the owner’s arrangement: two plots of one owner are split while a visible service existed between them;
- by law, such as the statutory right of way.
It ends after thirty years of non-use, to be proven by the owner of the servient land; by merger, when both plots come to have the same owner; or by the court, when it has lost all usefulness. The owner of the servient land may also ask for it to be moved, if he has an objective interest and the new location is equally usable.
How to find one
Deeds that create an easement are registered with the Legal Certainty office of the Federal Public Service Finance. Without registration, they cannot be enforced against third parties acting in good faith. A court ruling that sets a right of way is also registered. So read the seller’s title deed and the earlier deeds, in the section on easements.
For cables and pipes, KLIP, the cable and pipe information portal run by Athumi, brings together the plans of the network operators. A request is required before you carry out any groundwork.
What does this mean if you are buying a house?
An easement is a right in rem of use: it goes with the plot, including to you. It can limit your plans, for example if you must keep a passage clear. If you buy the dominant land, you may carry out the necessary works, at your own expense.
- Before your offer, ask for the seller’s title deed and read the section on easements and charges.
- Walk the plot and look for paths, gates, pipes and windows close to the boundary: whatever arises without a deed is visible.
- Have the notary read the deeds before you sign the compromis.
‘It is not in the deed’ therefore does not mean ‘there is none’.
What the Perceelscan shows
For each address, the Perceelscan shows, from public registers:
- the plan that applies, with the zone and its provisions, and the planning regulations;
- plans in preparation and expropriation plans;
- heritage, flooding, nature and any right of pre-emption (a public body that may buy first when a property is sold);
- Seveso sites (with dangerous substances) and OVAM’s soil investigations;
- vacancy and housing quality, such as repair orders;
- the environmental permits on the plot and at the neighbours, and historical maps;
- how many m² of floor area can be built under the rules.
It does not show easements: private easements are recorded in deeds, not in the public registers the Perceelscan reads. Nor does it show owners, not even a neighbour with a right of way. Ask the seller for the deeds; the notary checks them.
Sources
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