What easements and rights of way mean when buying property: praedial easement and personal easement, the encumbrance sheet and apparent rights.
BRANDAUER Rechtsanwälte
Salzburg law firm for real estate, property and corporate law
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A plot rarely belongs to the owner in the sense that he could deal with it without limits. Often easements burden a property, that is rights of third parties that the owner has to tolerate or in whose exercise he has to refrain from something. The best-known example is the right of way, with which the neighbour may drive or walk across the plot.
For the buyer such rights are important because they pass to him together with the property. Whoever buys a burdened plot takes over the duty to tolerate. Conversely, an easement can benefit the buyer’s own property, for example when a right of way secures the access. Both should be checked before the purchase.
This post explains from a lawyer perspective what easements are, how praedial easement and personal easement differ and why even unregistered but apparent rights can be dangerous. This way you know what to look out for in the land register and on the plot.
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Easements are listed in the encumbrance sheet (C sheet) of the land register. They can burden the property or benefit it.
If an easement burdens the property, you as buyer have to tolerate the use laid down in it, for example a right of way on foot and by vehicle or a line. The right passes to you together with the plot. Read the precise content of the registration and the underlying deed. Clarify the scope, the location and any maintenance duties before you buy.
Have the content of the easement and its deed checked.
If the easement benefits your property, you have a right over the servient plot, for example a right of way for access. Check whether the right is secured in the land register of the servient plot, because only the registration protects against a good-faith acquirer. Clarify location and scope precisely so that the access is permanently secured.
Have the safeguarding of the benefiting right checked.
If a use is recognisable, for example through a worn path or a visible line, an apparent easement may exist. Such rights can bind the buyer even when they are not in the land register, because with a recognisable use he cannot rely on the protection of trust in the land register. Follow up visible traces before the purchase.
Have visible uses clarified legally before the purchase.
If you find neither a registration nor visible signs, the risk of a burden is lower. It cannot be entirely ruled out, however, because adversely acquired or apparent rights remain conceivable. Check the current land register status carefully and ask the seller and neighbours about existing uses. This way you avoid later surprises.
Have the land register status and possible rights checked to be safe.
An easement, also called a servitude, is a right in rem over a thing belonging to another. The Austrian Civil Code obliges the owner of the burdened property to tolerate or refrain from something in favour of another. The owner thus has to accept a certain use or may not carry out a certain act.
Because the easement is a right in rem, it works against every owner of the property. It does not disappear with the sale but passes to the buyer. That distinguishes it from a merely contractual agreement, which applies only between the original parties. For the buyer this means that he must in principle accept a registered easement against himself.
Easements are as a rule created by registration in the land register and stand in the encumbrance sheet of the burdened property. Whoever buys a property should therefore read the land register extract carefully. How to do this is shown in our post on how to read the land register extract.
The law distinguishes two basic types. The praedial easement belongs to a plot and benefits the respective owner of the benefiting, that is the dominant plot. The classic example is the right of way that secures the access for the neighbouring plot. Line rights or the right to lead water across the foreign plot also belong here.
The personal easement, by contrast, belongs to a particular person. To it belong above all the right of usufruct, the right of use and the right of habitation. These rights are tied to the person and as a rule end with that person. For the buyer it is important whether, for example, a lifelong right of habitation is registered that can considerably restrict the use of the property.
With the praedial easement there is always a servient and a dominant plot. If you buy the servient plot, you have to tolerate the use. If you buy the dominant plot, you acquire the right along with it. Therefore check precisely on which side your property stands and what scope the right has.
These forms meet buyers when buying property. They bind differently and are differently visible.
| Type | Benefits | What buyers must note |
|---|---|---|
| Praedial easement Respective owner of a plot | Passes with the property | Clarify servient or dominant plot |
| Personal easement A particular person | For example habitation or usufruct | Check duration and scope of the use |
| Apparent easement User of the visible installation | Can take effect without registration | Clarify visible paths and lines |
Registered rights you recognise in the encumbrance sheet. Apparent rights you recognise only on the plot itself.
Caution with apparent rights: Not every easement is in the land register. If a use is apparent, for example through a visible path, it can bind the buyer even without registration, because he cannot rely on the trust in the land register. Therefore check both the land register and the plot. Booking an initial consultation (72 euro) helps to assess the risk.
The protection of trust in the land register has an important limit. Whoever buys a property may in principle rely on the land register status. If an easement is apparent, however, for example because a worn path or a visible line points to the use, the buyer cannot rely on his lack of knowledge. Such apparent rights can work against him even without registration.
In addition, easements can arise through adverse acquisition. If a right is exercised in good faith beyond the statutory period, it can be acquired in this way, even if it was never registered. For the buyer, therefore, not only the land register extract but also the actual use of the property is of importance.
Before the purchase a double check is therefore advisable. Examine the land register status and inspect the property with open eyes. Which encumbrances and rights are registered you recognise with the encumbrances and land register check. Visible traces on the plot you should clarify in addition.
An easement is a right in rem over a foreign property. The owner of the burdened property has to tolerate or refrain from something in favour of another, for example a right of way on foot and by vehicle. Because the right is in rem, it passes to the buyer on a sale.
Yes. A right of way registered as a praedial easement is tied to the plot and passes to the buyer together with the ownership. If you buy the burdened plot, you have to tolerate the right of way. If you buy the benefiting plot, you acquire the right along with it.
Yes, that is possible. If an easement is apparent, for example through a visible path, it can bind the buyer even without registration. Adversely acquired rights are also conceivable. Therefore you should check, besides the land register, the actual use of the property.
Which rights and encumbrances can be registered in the land register.
How to correctly understand the encumbrance sheet and the entries.
How a registered right of first refusal can affect the purchase.
Get an overview of the registered encumbrances.
When buying property, the contract and the land register decide. Call us directly or send an email, callback within one business day.
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