How is an easement established?

What is an easement?:How is an easement established?

An easement is a lien that affects a rural or urban property, which obliges its owner to allow the use and enjoyment of said property to a third party.

The easement allows third parties to use a property, either as an access route, as a transport route for supplies such as water, energy, etc.

Easements, once they are imposed, are mandatory and therefore are defined as a charge or encumbrance on the property, which survives the transfer of ownership, that is, the person who buys a property with an easement is subject to respect that easement, as stated in article 883 of the Colombian civil code, regarding the inseparability of the easement of the property.

Servitude in the Colombian civil code.

In Colombia, servitude is regulated in the civil code, which in its article 879 states:

“Property easement or simple easement, is a lien imposed on a property, for the benefit of another property of a different owner.”

In a country where private property predominates, for society to function properly it is necessary that in some cases a group of people can make use of someone else’s private property, and the owner of that property cannot refuse to do so, having to bear that burden or assessment.

This is the case of the property where a village road passes, or where a neighbors’ aqueduct passes.

An owner of a property could not leave his property if the owner of the adjoining price prevents him from passing through it, and in such case it is necessary to impose the easement of the road or access road.

Bondage classes.

The civil code classifies easements into three groups or types:

  1. Natural.
  2. Legal.
  3. volunteers.

In addition, there are continuous and discontinuous, active and passive, positive, negative and apparent easements.

Natural easements.

Natural easements are those imposed by nature without human intervention. The typical example is that of water, where the source or current of water runs through several properties without requiring the permission of any of them or the possibility that the owner of a property prohibits it.

In the easement of water currents or natural easement it is established that the owner of the estate can make use of the water, but said use will have the following limitations:

  • When the owner of the lower estate has acquired the right to use the same waters by prescription.
  • When the navigation or floating laws are contravened.
  • When the waters are necessary for the domestic use of the riparian owners.

Legal easements.

The legal easements that, as their name indicates, are those that are constituted by law; These are those for public use and those constituted in favor of individuals.

Easements for public use are the use of riverbanks for navigation or floating of ships and the others determined by the laws as expressed in article 897.

They are easements instituted by law and therefore become mandatory in such a way that the owner of the property cannot refuse their constitution.

Voluntary easements.

The owner of a property may voluntarily impose easements in favor of a third party. In this regard, article 937 of the civil code states:

“Each one may subject their property to the easements they want, and acquire them on neighboring properties, with the will of their owners, provided that public order is not damaged with them, nor is the law contravened.

Easements of this kind can also be acquired by a judge’s sentence, in the cases provided for by law.”

This is where the concept of the good neighbor becomes relevant, because otherwise the intervention of a judge will be required.

Rights granted by an easement.

The easement grants the right to its beneficiaries to use it (walk along the road, pass a pipe through the property, etc.), which includes accessory aspects necessary to make the easement effective.

Article 885 of the civil code points out:

“Whoever has the right to a servitude, also has the right to the necessary means to exercise it. Thus, whoever has the right to draw water from a source, located in the neighboring estate, has the right of transit to go to it, even if it has not been expressly established in the title.»

For its part, article 886 of the same code provides:

«The one who enjoys a servitude can do the essential works to exercise it; but they will be at his expense, if the contrary has not been established; and even when the owner of the servient property has been obliged to do or repair them, it will be lawful for him to exempt himself from the obligation, abandoning the part of the property in which the works must be done or preserved.»

The beneficiary of the easement has the right to enjoy it with peace of mind, so that its use is not disturbed by the owner of the encumbered property.

In this regard, article 887 of the civil code states:

“The owner of the servient estate may not alter, diminish, or make the easement with which his is encumbered more inconvenient for the dominant estate.

However, if over time the primitive mode of servitude becomes more onerous, he may propose that it be changed at his expense; and if the variations do not harm the dominant estate, they must be accepted.”

This type of situation is very common in rural properties where public spaces are practically non-existent and all property is surrounded by private properties.

How is an easement established?

In general, easements are constituted voluntarily through verbal or written agreements, some by public deed.

If an agreement between the parties is not possible, the interested party may file a lawsuit before a civil judge so that he imposes the easement if he finds the need proven, as in the case of the person whose only access route passes through the land of the neighbour.

Through a judicial process, an easement can be constituted, modified or extinguished.

Right of way.

One of the most common easements and one that causes the most conflicts between individuals are traffic easements , also known as right of way.

These suppose the need to go through the neighbor’s property to be able to arrive or leave our price, and if the neighbor does not give us permission it will be impossible to enjoy our property, hence queries like this are normal:

“I bought a property and to access it I have to go through someone else’s land whose owner says that he will not allow me. What can I do?”

The foregoing is solved with the traffic easement that requires the following requirements:

  1. The property of the person requesting the easement must be isolated from the public road.
  2. It is necessary to pay for the land that is required for the easement.
  3. The damage caused by the imposition of the easement must be compensated.

The traffic easement is established in article 905 of the civil code, which was the subject of a pronouncement by the Constitutional Court in constitutionality ruling C-544 of 2007, in which the unconstitutionality of the word “all” was declared. and the rest of the article was declared conditionally enforceable.

The expression declared unenforceable gave a restrictive aspect to the norm in the sense that traffic easement was only granted when the dominant property was completely isolated from public space; Now, if given the case that the property had access to public space, but this did not allow adequate exploitation of the land or that the owner exercised full enjoyment of it, said phrase restricted any possibility of constituting a traffic easement, and therefore was declared unenforceable by the Court.

On the other hand, the conditioned enforceability of article 905 of the civil code in this sentence, focuses on the fact that, in order to constitute the traffic easement, the administrative or judicial authorities, as the case may be, must as a first step analyze the rights in conflict to impose it, that is to say, that the imposition of this must not be arbitrary, but that said rights must be weighed.

Taking into account the above, when to access our property it is necessary to pass through the property of another person, if the latter refuses to allow us to pass, a process must be initiated in order to establish the traffic easement; however, it must be clear that in order to enjoy the servient estate, its owner or possessor must be compensated for the damages it causes and pay for the land that is intended to be used as an easement, in accordance with what is stated in article 905.

Compensation or payment of the right of way.

The easement may be voluntary or imposed by a judge, and in either case, the property subject to the easement encumbrance is entitled to be paid for the land occupied by the easement or to be compensated for the damages caused by the easement. servitude.

If the parties do not agree on the price to be paid for the land occupied by the easement, or on the amount of compensation to compensate for any damage, an expert must be resorted to according to article 906 of the civil code, in order that it defines the fair value to be paid.

Extinction or closure of the right of way.

There is the possibility that the easement of passage may be extinguished, or the passage may be closed under the terms of article 907 of the civil code:

“If the traffic easement is granted, in accordance with the preceding articles, it becomes not essential for the dominant estate, by the acquisition of land that gives it easy access to the road, or by other means, the owner of the servient estate will have right to request that he be exonerated from the easement, restoring what was paid for the value of the land when establishing it.”

This type of procedure generally must be carried out in the judicial courts, since a person is rarely willing to voluntarily give up a right of way, even if they no longer need it.

Easements for the provision of public services.

The provision of public services under the premise of building a good or service of general use and interest, implicitly carries the power to impose the easements that may be necessary to fully comply with the objective.

Law 142 of 1994 in its article 57 states:

«Power to impose easements, make temporary occupations and remove obstacles. When it is necessary to provide public services, the companies may pass the necessary lines, cables or pipes through third-party premises, through an aerial, underground or surface route; temporarily occupy the areas required in those properties; remove crops and obstacles of all kinds found in them; transit, advance the works and exercise surveillance in them; and, in general, carry out in them all the activities necessary to provide the service. The owner of the affected property will be entitled to compensation according to the terms established in Law 56 of 1981, for the inconveniences and damages that this may cause.

Electric power and fuel gas transmission and distribution lines, aqueduct, sewage, and telephone networks may cross rivers, streams, railways, bridges, streets, roads, and cross aqueducts, oil pipelines, and other lines or conduits. The interested company will request permission from the corresponding public entity; If there is no express law that indicates who must grant it, the municipality in which the obstacle that is intended to be crossed will do so.”

Although the public utility company may impose easements where necessary, if applicable, it must indemnify the owners of the properties affected by those easements.

Compensation in easements.

As a general rule, easements are free, where there is no obligation to pay the owner the price for the right to the easement, although nothing prevents the parties from agreeing on a consideration in a voluntary easement.

In any case, if the easement imposed causes harm or damage to the encumbered property, the owner has the right to be compensated according to, as in the case of traffic easements enshrined in article 905 of the civil code.

It is natural that if the property affected by the easement is affected, there is a right to compensation, and if the amount of it is not voluntarily agreed, it is necessary to resort to a civil lawsuit so that the justice system determines the amount of compensation.

How an easement is extinguished.

An easement can be extinguished for different reasons and the civil code in its article 942 indicates the following:

  1. By the resolution of the law that constituted them.
  2. For having fulfilled the obligation, if it has been established.
  3. Due to the confusion, that is, the property of both properties in the hands of the same owner, for example, Juan was the owner of the servient property and Felipe the owner of the dominant property; Felipe buys the property from Juan, in this case the easement is extinguished because the property corresponds only to Felipe.
  4. By the resignation of the owner of the dominant property, that is, the person who exercises the active easement decides to waive his right of easement.
  5. For not having been used for more than ten years, that is, here the extinctive prescription of the right of easement occurs due to the passage of time without the use of said right.

When the dominant property belongs to two or more people, if any of these people makes use of the easement, the prescription of all is interrupted. Let us remember that the prescription can be extinctive or acquisitive, so the easement can also be acquired by prescription.

Finally, in the event that it is not possible to use the easement due to the state of things, it will revive as soon as the impossibility ceases to exist as established in article 944.

What happens to the easement when the property is sold?

It may happen that the property encumbered with the easement is sold or the property benefited from it is sold, and in this case special attention must be paid to the easements that are linked to the property.

Article 883 of the civil code states that the easements are inseparable from the property, so that if you sell the property, the easements are understood to be included.

However, there are cases in which the easement is not linked to the property, as in the case of voluntary easements, where the owner of a property gives permission to his loser, Don Pedro, so that he can travel alone, so that if Don Pedro sells his land the new owner cannot make use of that easement.

For this reason, when a property is acquired that is served by neighboring properties in different ways (roads, water passage, etc.), the conditions of the easements must be verified.

Easements when the property is divided.

In cases where a property affected by an easement is divided, the easement is not affected, as is made clear by article 884 of the civil code:

Once the servient estate is divided, the servitude that was constituted in it does not change, and the one or those who are affected by the part in which it was exercised must suffer it.

Thus, the new owners of the property that enjoys a traffic easement, cannot demand that the direction, shape, quality or width of the path or road destined for it be altered.

Now, if it is the property that enjoys the easement that is divided (dominant property or active easement), the new owners resulting from the division of the property continue with the right to the easement in accordance with article 890 of the civil code:

“Dividing the dominant estate, each of the new owners will enjoy the easement, but without increasing the lien on the servient estate.”

The easements are unalterable despite the changes suffered by the property affected by the easement, which becomes more evident with article 887 of the civil code:

“The owner of the servient estate may not alter, diminish, or make the easement with which his is encumbered more inconvenient for the dominant estate.

However, if over time the primitive mode of servitude becomes more onerous, he may propose that it be changed at his expense; and if the variations do not harm the dominant estate, they must be accepted.”

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