Rights of way

Easements in law are an interesting but complex concept. For this reason, it is quite common for property owners to turn to specialised lawyers for advice on the subject. In order to give you a fairly accurate idea of what it is, we are going to dedicate an extensive article to it. Lawyers specialising in horizontal property are the professionals who will be able to advise you on these aspects.

What is a legal right of way?

The legal right of way is a real right by which the ownership of a specific property is limited, which is known as the servient estate, with the purpose of obliging it to provide a passage and an exit or entrance way to another property of similar characteristics, which is known as the dominant estate.

The servitude in the Civil Code is reflected in articles 564 and 570. Specifically, it establishes the right of an owner of a property which is located between others and which does not have an exit to a public road to ask for passage to them. Furthermore, upon payment of the corresponding compensation, the owners of these properties are obliged to give it to him.

There are a series of characteristics that perfectly define easements of way and, in general, the rest of the types contemplated by the Civil Code. In this sense, there are easements of water, drainage, lights and views, dividing walls, aqueducts, balconies, wood extraction, community of pastures and boxes or seats. In any case, these are:

• An easement of way always limits ownership or dominion.
• It is always subject to ownership.
• It is a right that is exercised over another's property.
• There must be two properties, one servient and the other dominant.
• It must be motivated by questions of utility.
• It may require the performance of an action or the cessation of an action.

What compensation is provided for the right of way?

Compensation for the right of way will vary depending on certain circumstances. Specifically, they are as follows:

1. Easement path for continuous passage and satisfaction of the needs of the dominant estate through the establishment of a permanent way. In this case, the compensation will be equivalent to the value of the land occupied, to which an undetermined figure will have to be added for any possible damage this may cause to the servient estate.
2. Easement road for the extraction of crops and their cultivation without the construction of a permanent road on the servient estate. In this case, the compensation will only have the value of the possible damage caused by the granting of the right of way.

Easements in law: How can they be obtained?

Both the Civil Code and the existing case law on the legal easement of way have made a number of considerations. In this regard, it is considered that, on the one hand, any property, including estates that are subject to this right, are considered free until proven otherwise and that, on the other hand, the easement itself is discontinuous.

But what does it mean that the easement of way is discontinuous? It means that it is a right that can only be acquired by means of a title or through the recognition of this by the owner of the property that acts as servient estate. It is also possible for it to be granted by destination of the father of the family. Finally, in the event that a landowner requests another landowner to grant him the right of way by fulfilling the necessary requirements established by the Civil Code and the latter refuses, this must be determined by a final judicial decision issued by a competent court. If all this is complicated for you, the best thing to do is to contact specialist lawyers in Madrid.

What are the dimensions and widths of roads established by easements?

This is a rather complex question. The easement in the Codigo Civi does not specify it clearly. Specifically, the only thing it states is that the width must be sufficient to satisfy the needs of use of the dominant property. This is one of the most disputed and controversial aspects.

On the other hand, the articles of the Civil Code that regulate the right of way only speak of the width since, with regard to the length, it is already clear that this must be the shortest to the nearest exit from the dominant property, provided that it causes the least possible damage to the servient estate.

On the other hand, the actual needs must be what determines the initial width of the road. This is another reason why it is usually determined by the courts, since, in the end, it is a judge who establishes it. Moreover, once it is set, it can be varied depending on how these needs change over time.

In fact, the right of way is never considered as a permanent right and is subject to modifications of all kinds. In this respect, a simple example may be useful. Just imagine that a road granted by this way by a servient estate 80 years ago for the specific purpose of allowing the passage of draught and freight now has to allow the entry of large motor vehicles, such as tractors and lorries. Obviously, the characteristics of the road must be adapted to the new times.

What happens when the easement of way affects urban properties?

The Civil Code makes no distinction between urban and rural properties, so it should also apply to the latter. In fact, the equivalence would be the absolute physical lack of an exit to public roads or that it is extraordinarily complex, dangerous or costly in economic terms.

However, the current legislation does refer to the fact that the problem must be real, i.e. not caused or induced by the owner of the enclaved property. This refers to the placement of obstacles or the conscious sale of a part of the property that did have access to a public road in order to gain the right of way.

Is it possible to obtain an easement of way by prescription?

This is another of the major problems that arise with regard to the granting of this right. What happens when a person has spent an unspecified but long number of years passing through his neighbour's property with the purpose of accessing the nearest public road without any problem and, one day, the owner of the property decides not to allow him to pass? This is undoubtedly a complicated question.

Evidently, case law tries to maintain a uniform and stable doctrine when dealing with this type of case. Therefore, it prevents usucaption, i.e. the acquisition of a right by exercising it for the time and under the conditions provided for by law, in general. However, each case is different, so that the court, depending on the circumstances, may make specific rulings taking into account a number of specific considerations.

We hope we have resolved any doubts you may have had regarding the right of way and that we have been of help to you. If you need to know more, just contact us and we will help you.