RIGHT OF WAY EASEMENT – Article 15.5.22
To grant public record of real right of way /easement
Have you read your title deeds? Does it say something about ‘servidumbre de paso’ or ‘derecho de paso’?
In the affirmative case, we are sure you will find this article of your interest.
To begin with, as specialized property lawyers, we sometimes come across land registry certificates (“nota simple” in Spanish), that refers to the right of way or easements.
Due to the important legal implications of this particular issue, we have considered it appropriate to write this article. In fact, we received a consultation regarding a person who bought a country house back in 2014. This property had vehicular access the property over a track that passes over land belonging to 2 other properties. The house was built in the nineties and access has always been over the same ground. However, one of the owners of the 2 other neighbouring properties unilaterally denied access through their land. As a result of that, the client couldn’t get access to his own land and property, with disastrous effects for him. Another case, this time, is the latest example of an easement found on a title deed’s description:
“SERVIDUMBRE de paso, como predio sirviente; a favor y a efectos de dotar acceso al resto de la finca matriz dominante …; inscripción ..; y concretamente a las parcelas 38, 37, 36, 35, 34, 31 y 22 de la misma; consistente en un camino en línea quebrada que parte del llamado de la Inquisición sito el norte de la finca ……; en dirección Norte-Sur, con una anchura meda de tres metros y una superficie aproximada de treinta y seis áreas, el cual se bifurca al llegar a la altura de la casa de labranza, dirigiéndose un tramo al Este y otro al Oeste y dando acceso el primero a la parcela … a través de la 26 y el segundo, a la parcela 22 a través de la 24.
La longitud total del camino en sus tres tramos, es de mil doscientos metros aproximadamente y sus lindes los siguientes: Norte camino de la Inquisición y finca matriz ….. Sur, la finca …. y monte de …….; Este, acequia y esta finca …. y Oeste, resto de la finca matriz.”
“EASEMENT of passage, as a servant estate; in favor of and for the purpose of providing access to the rest of the dominant parent estate …; inscription …, and specifically to plots 38, 37, 36, 35, 34, 31 and 22 of the same, consisting on a path in a broken line that starts from the call of the Inquisition located north of farm ….; in a North-South direction. With an average width of three meters and an approximate surface of thirty-six areas. Which forks when arriving at the height of the farmhouse. One section heading to the East and the other to the West. The first giving access to plot 31 through 26 and the second to plot 22 through 24.
The total length of the road in its three sections, is approximately one thousand two hundred meters and its boundaries are as follows: North road of the Inquisition and parent farm …. South, farm … and mount of ….; East, ditch and this farm … and West, rest of the parent farm ….”
USEFUL TERMINOLOGY AND RECOMMENDATIONS
In the first place, “servidumbre de paso” exists when the owner of one plot (A) grants a special clause establishing that the adjacent plot (B) has the right to cross the A plot to reach the public road, for example. These types of clauses are used when the people living in the B plot do not have a direct exit to the public road/pathway or similar. This is why we say that the A plot is the servant plot, and the B plot is the dominant plot. This would also be called an easement in English, which is a right given to another to travel across the real property of another, or the strip of land subject to such an easement. A synonym would be a wayleave.
Another common example: if the electricity board wants to run its power lines over one’s land, an easement could be informed. So Iberdrola can access its equipment on the servant plot to be crossed.
Second, for being legal, the “servidumbre de paso” must be granted before a Notary, and afterwards, the title deeds where this charge has been declared must be submitted to the Land Registry Office, (in order to get this right of way properly registered).
Therefore, it is essential before buying a property in Spain to carefully read the title deeds, and the ‘nota simple informativa’, in order to check if it might say something about ‘servidumbre de paso’ or ‘derecho de paso’, as most the times these rights may be specifically described there. Also, it is crucial. to investigate carefully the exact nature and legal implications of such easement, in order to assess its real impact on the owner’s rights over the land.
Sometimes, the right of access has very negligible effects but in some other cases, like the one first described before, they can be catastrophic.
Third, finally, the ‘time limit’ to acquire an ‘easement’ protected by law, is 20 years in Spain, provided it is stated in the title deeds.
HOW TO CONTACT US FOR FURTHER SPECIFIC ADVICE?
We hope this information is useful. Remember that this is not intended to be specific legal advice, just a general overview. As independent lawyers, we can help you both by assisting you with all property issues as well as carrying out a comprehensive background legal search on a property, if required.
Should you be interested in receiving more specific information, (either about this particular subject or any other), you can contact our firm in several ways:
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Finally, thank you very much for your attention, and in case you might have any questions or doubts about the right of way /easement, again please do not hesitate to contact us. We will be glad to help you!
We look forward to helping you and the benefit of our “know-how”.
Mr Oscar Ricor
“NON-PRACTISING ENGLISH SOLICITOR IN ENGLAND AND WALES”, under the “Solicitors Regulation Authority” (SRA) SRA number 519196 and practising Spanish Solicitor.