The easement in property law ( BGB ) as a type of easement is the encumbrance of a property or right equivalent to a property (the serving property) in favor of the owner of another property (the ruling property) in such a way that
- the owner can use the serving property in individual relationships (example: right of way ),
- Certain actions may not be carried out on this property (example: exclusion of development according to type and extent) or
- the owner of the contaminated property is not allowed to exercise certain rights (example: tolerance of excessive immissions ).
The easement - unlike the limited personal easement - is not appointed in favor of a specific person, but in favor of the respective owner of another property. This means that when the serving or ruling property is transferred, it is transferred to the new owner.
The easement arises from the agreement of the owners and entry in the land register of the encumbered property and, due to the public belief of the land register, also applies to legal successors. An additional entry in the land register of the ruling property (rule of domination) is possible, but not required. The authorized person is protected against disruption of his right of use like an owner. The easement is an essential part of a property within the meaning of BGB.
Most common use
In practice, easement is mainly used for the individual structuring of legal relationships between neighbors , in order to regulate the usability of property in particular behind it by means of access , crossing or pipeline rights (for water, sewage, electricity, etc.) . A mere contractual agreement between the parties is usually not sufficient here because the beneficiary could not hold it against the purchaser of the encumbered property.
In return for the burden that the neighbor has to tolerate, the neighbor can demand that the beneficiary compensates him accordingly, for example to contribute to the maintenance costs of the access road and pay him compensation for use . In a contract, both sides agree which rights the resident should be entitled to and how much they have to pay for them. The amount of the costs depends in practice on the frequency of use, i.e. on whether the right of way is only used privately, whether the beneficiary pursues his professional activities there, for example in a doctor's office or tax office or whether it is e.g. B. is only a rarely used holiday home, a hunting lodge or the like.
The right can only be exercised in the manner agreed and entered in the land register. The type and scope are fixed and can only be expanded by a new agreement and registration. Changes to the specified use are only possible without an agreement if the technical and economic circumstances have changed over time. However, this need not have been foreseeable at the time the easement was established and the use of the dominant property must remain similar in nature.
Example: If the owner of the ruling property only has right of way to walk, he is not allowed to drive over it. It is not allowed to park on a walking and driving right. Laying lines in a right of way is only possible if a line right has also been entered. A line right for the laying of clay pipes is allowed today with plastic pipes.
Careful exercise (§ 1020 BGB)
The right is always to be exercised in such a way that the owner of the serving property and the property are not impaired beyond what has been agreed. The interests of the owner must be protected, only what is absolutely necessary is permitted. Damage caused by exercise must be eliminated.
Example: Driving on a path is only permitted if it is of use to the dominant property. Driving over “senseless” would not be allowed. If there is damage in a water pipe and part of the property is watered down as a result, the leak must be sealed and the waterlogged removed. Maintenance measures are to be carried out quickly, safely and sustainably.
Maintenance obligations (§ 1020 and 1021 BGB)
By law (Section 1020 sentence 2 BGB), the person entitled is obliged to maintain an installation if he / she holds or needs an installation for exercising the easement. Only the authorized person has to ensure that the usability of the system is guaranteed. In the case of mutual use (right of joint use), the maintenance obligation of the parties exists in relation to one another according to the scope and intensity of the mutual use of the facility. The obligation among each other is based on § 748 BGB, in case of doubt half in accordance with Section 742 BGB. Whether the person entitled holds a system depends on the actual and / or necessary use, not on the content of the easement (BGH of December 17, 2010 Az .: V ZR 125/10 and of February 17, 2006 Az .: V ZR 49/05).
Right of joint use
The joint use of facilities by the property owner without an explicit regulation in the basis of the permit can only be affirmed if the person entitled to easement is not significantly affected by this. In principle, plants are an integral part of the property (Section 94 BGB). As soon as shared use occurs, there is a community within the meaning of §§ 741 ff BGB.
Example: The part of the property with a right to walk and drive can also be accessed by the property owner. On the other hand, parking would hinder those entitled. The shared use of a sewer pipe can only take place if it is dimensioned accordingly.
Relocation of easement (§ 1023 BGB)
The property owner can enforce the relocation of the easement at his own expense if the other location is equally suitable.
Extinction of an easement
An easement expires, among other things, if:
- it is temporary
- a resolving condition occurs
- the deletion has been approved
- the easement can no longer be exercised and the statute of limitations has occurred (Section 1028 BGB)
- the right in a foreclosure sale no longer applies
- the advantages for the ruling property have ceased to exist and cannot occur again