Real Estate Blog

What is a Right of Access

29 Sep 2019

Legal, by Broosco Team

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Definition of the right of access, when it applies and what you should know when buying or selling a property with a right of access.

The right of access is a type of easement that gives its holder a non possessory interest in someone else's real property (servient estate). It can be a right of roadway or pathway that benefits a particular person or benefits a particular parcel of land (dominant estate)

When it applies?

This right of access applies to properties that have no direct access to a public road or space, so the only way to these properties is to cross a property owned by someone else. In real estate these properties are called “landlocked”. It’s rare to meet landlocked properties in areas with a city plan. On the contrary it’s common to find landlocked properties in areas outside city limits.

Who is the owner of the land with the right of access

It’s important to clarify that the part of the property which one could use in order to access his own land belongs exclusively to that property. No ownership rights can be claimed by the person using the access road, but the passage itself.

Is it safe to buy a land without right of access?

It is strongly recommended to make a thorough legal search to make sure the land you wish to buy is legally accessible. As a general rule, a parcel of land without an access to a public road or a commonly used space can’t be built.

How is the right of way established?

A right of way can be established through a notary’s act but also through long-term use, often referred to as Prescription or a Prescriptive right of way. The basis must be that the right has been used without secrecy, force or permission for a period of at least 20 years.

Can easements be transferred to new owners?

 Given that the easement is a right provided in favor of a specific property, when this latter is transferred, the easement is transferred as well and the new property owner is entitled to use the access road since the relevant right accompanies the property and not the property owner. In order to make sure this is the case, the notary’s act referring to the property transfer should include an explicit reference on this specific issue.

Can a right of access be removed?

The right of access can be ceased either by a notary’s act, signed by both property owners or in case of a dispute through a definite court decision. Both should be registered at the competent land registry.

Can I build on a right of access?

The owner of the servient estate can use his property and consequently its part used as an easement, in any way that does not unduly hinder the dominant estate's use of the easement. Therefore, although the s.m. of the easement are by law included in the servient property’s building density, evidently the property owner can’t build on it. Moreover, the easement holder can enjoy the purpose of the easement, as long as he does not put an unreasonable burden on the servient estate.

Who has to maintain a right of access?

Should the right of access be a part of a private property, legally it’s its owner that has to maintain the relevant part of his property. However, depending on the circumstances an agreement between the related parties may provide the right to the easement holder to do whatever is convenient in order to fully enjoy the easement. In case the easement is a public property, it’s the official public authorities’ responsibility to provide its unhindered use.

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