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The ABC of Easements: Possible Types and Why They Are Necessary

As promised, here we are with an article that addresses some topics that were briefly introduced in a previous article titled: “The ABC of Easements: What Are They and How Are They Created.” So, if you

The ABC of Easements Possible Types and Why They Are Necessary

As promised, here we are with an article that addresses some topics that were briefly introduced in a previous article titled: “The ABC of Easements: What Are They and How Are They Created.” So, if you just ran into this article I suggest you go back to the previous article before going any further. The topic has been divided into multiple articles because of its intricacy and many nuances. 

In the previous article, it was explained that an easement is, in basic terms, a type of encumbrance that can be constituted over a property in favor or to the advantage of another one. This involves, in principle, two properties: the dominant one and the servient one, through which the owner of the former is granted the right to carry out certain uses in the latter. In said article, we also addressed the basic characteristics that any easement must abide by in order to be deemed an easement, no matter what type.

Now, regarding the types of easements that can be established, we have to resort to the doctrine. According to it, the easements can be classified as follows:

1. Apparent and non-apparent: an easement is apparent as long as there is an external sign that evidences its existence in an unobjectionable way. For example, if there are signs, gates, fences and such. On the other hand, a non-apparent easement lacks those signs so that we might be in the presence of an underground easement (much like subterranean sewerage).

2. Continuous and discontinuous: contrary to what you might reasonably believe at first, this doesn’t have anything to do with the structure or course of an easement. An easement is considered continuous if it does not require human intervention (the clearest example of this is, perhaps, a water or electrical easement, which is permanently in use). An easement is discontinuous when the use of an easement is not permanent, since it requires human intervention (like the regular easement that constitutes a right to enter or pass through a property; in principle, an easement like that is not in permanent, non-stop usage).

3. Positive and negative: if the owner of a dominant estate or property conducts activities in the servient estate (like cutting through it to get and carry water), this is considered a positive easement. A negative easement implies that the owner of the servient property must abstain him/herself from undertaking certain actions, like hypothetically blocking the view that the dominant easement has of a landscape or of the sea (which means that there is a view easement in its favor). In such a situation, it’s clear that the owner of the servient property would not be able to erect, for example, high rise apartments in front of the dominant estate.

4. Legal easements: another clarification here. This does not mean that the previous easements we have addressed up until this point are illegal, rather, this means that sometimes an easement can be constituted through certain circumstances that are established in the law. This happens when there’s an enclosed property (meaning that the property doesn’t have access to a public road, or that the access is not sufficient). In this case, the law establishes an obligation directed towards the servient estate, through which the right of way must be constituted. The clearest example of this situation is what is referred to in the Civil Code as “mandatory easement,” which involves a judicial procedure in order to determine the way to constitute that required easement.

As a “bonus,” the Law of Urban Planning (Law no. 4240), includes the possibility of generating easements in order to create new properties, which differs from with the Civil Code since, according to that Code, an easement can only be constituted if the properties already exist.

Following the aforementioned law, all the parcels or lots that result from segregation must have clear access to a public street or road. In principle, and just in “qualified cases,” the appropriate municipality can admit the subdivision of lots through the constitution of an easement, which is precisely what we are addressing now. An easement in this situation is intended to be constituted in fields or lands that, because of their dimension and location, cannot be segregated in a manner that would give them adequate access to already existing public roads (which supposes that the original parcel from which the easement is constituted in order to create the new properties has a limited front and a deep end).

Of course, and since the law does not define what is encompassed under the scope of “qualified cases,” this type of land division has become common.

Moreover, the Regulation for the Control of Divisions and Urbanizations (that dates back to 1982 and derived from a temporary disposition included in the aforementioned law) included the legal figure of the “agricultural easement,” which is linked to properties with agricultural, foresting, or cattle purposes. This easement in particular, in comparison to the regular easement, is not subject to a limited duration and can be constituted within the properties (the regular easement is meant to be constituted outside of the properties, bordering them).

Another detail to bear in mind is that, as I stated in the previous article, in principle, the constitution of an easement involves the existence of, at least, two different properties: the dominant one and the servient one. Well, there are certain cases in which an easement can be constituted even in the absence of a dominant estate. These easements are imposed over a servient estate for the benefit of a group of persons or a public service (for example, the Costa Rican Electricity Institute, the National Service of Aqueducts and Sewage Systems, and such).

So, as you can clearly see, easements, in general, are basically needed in order to procure the maximum use and exploitation of the land. Each type of easement has been conceived with that essential objective in mind. 

It may sound obvious at this point, but a property is not an isolated entity; it forms part of a community and therefore it is, in the end (and in spite of the private character that even the Constitution acknowledges), subdued to limitations that respond to public interests. This is why there’s also the possibility of creating an easement through the law, and not only through the free will of the owners of the properties (even if the law can always be subject to improvement). 

It is clear that there are certain aspects we could address even further. As I mentioned in the previous installment, Real Estate tends to be a rocky field. Luckily, there’s always room to learn and improve, and articles like this one can be a good start.

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daguilar@outlierlegal.com

Attorney with experience on Real Estate, Real Estate planning, and notary affairs. Has focused on the branch of Civil Law known as ius in re or rights over property. Has experience also in non-contentious procedures and arranging reports on legal affairs in general

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