PropertyReal Estate

The ABC of Easements: What Are They and How Are They Created?

Today, we are going to address another topic that is essential to this field: easements.

When we discussed some of the aspects concerning the right of ownership, we posited that such a right is, under the branch of civil law known as “real rights” (meaning the rights that fall on properties or objects in general), the right that grants its holder the greatest number of prerogatives, but that such prerogatives are subject to certain limitations, limitations that are often the result of public and social interests.

The right of ownership is not the only type of right that falls under the purview of those so called real rights. There’s a whole classification of those rights that has been developed both in the doctrine and in different legal systems. In light of this, there are other rights beside the right of ownership that also grant their holder a certain power over an object or property, but this power pales in comparison to the control or power that the right of ownership grants. These other rights are usually known as “iura in re aliena,” meaning that they are real rights that fall on an object or property that grant the holder some sort of control over that object or property even if the object or property doesn’t belong to the holder of the right.

And here’s where the aforementioned classification comes in. The rights that are usually included in the scope of “iura in re aliena” are usually classified in three different types: rights that grant the holder the possibility of use or enjoyment of a certain object or property, a guarantee or even a right of preferential acquisition (the rights that fall in this last category are not found in the Costa Rican law system which is precisely why a few lines back I stated that some of these rights have been developed in different legal systems). We may address those rights in installments to come.

Easements are indeed a type of “iura in re aliena”, and they are included in the classification of rights that gives the holder a faculty of use or enjoyment over a property that doesn’t belong to said holder.

As a start, an easement is basically a type of encumbrance that can be constituted over a property. As you may already know, an easement involves, at least, two different properties (or “country estates,” as they are often called in the doctrine): a dominant estate and a servient estate, which has to withstand being servient to the dominant estate. Given that it’s a civil law figure, its origin can be found in Rome. The genesis of this figure was related to the use of fields and meadows, and its main aim was to aid or make the most out of the use of farming zones.

As a heads-up, there is a wide variety of easements that can be constituted (an aspect that I believe would be better addressed in another installment), but all of them, no matter their type, have to meet a number of characteristics in order to be formally and legally recognized as an easement, namely:

  1. Inseparability: easements are inseparable from the property or lot they belong to either actively (dominant estate) or passively (servient estate). This means that it is not possible to alienate or transfer an easement independently. If you are interested in acquiring an estate that has an easement, this means you will necessarily have to accept such an estate with that easement. Likewise, a mortgage cannot be constituted over an easement, unless such a constitution includes the property affected by that easement.
  2. Indivisibility: an easement cannot be constituted in parts or “ideal quotas”; it must be constituted as a sole unit or entity. If the lots or properties that are subdued to an easement get divided, the easement remains intact, in which case every resulting lot must tolerate the easement.
  3. Utility: an easement is constituted for a practical purpose that generates an advantage for the dominant estate, whether this it be due to necessity or in the hopes of greater comfort. Having said this, the utility is crucial. If an easement stops having utility, there is no reason whatsoever for its existence (if you think about it for a second this applies to many things in life, so yes, you are free to take this as some sort of sign).
  4. Term of presence or continuity: this one is linked to utility. An easement is constituted with the intention of using it permanently, therefore, it is not possible to conceive of, say, an “occasional” easement (however, it is possible to constitute an easement for a specified term or what is known as a “condición resolutoria,” which means that if in the future a certain condition is met, it would cause the demise of the easement).
  5. “Nemini res sua servite: it seems like there must always be a Latin term when addressing these kinds of topics, right? This term in particular means that it is not possible to constitute an easement in your own lot or property; it’s necessary for there to be at least two properties (the dominant estate and the servient estate), and each of those properties must belong to different owners.
  6. Predial quality: now, this requirement may seem strange, but it is often included in the doctrine and certain norms. This means that an easement is constituted in favor of or against a property or lot, not people (perhaps referring to the serfdom).

So, if one of these elements is missing, we would not be in the presence of a proper easement. In order to be formally constituted as an easement, it must comply with the requirements.

If all requirements are met, an easement can be constituted. The proper way to do so (at least in Costa Rica) is, in principle, through a deed that has to be granted by a notary public. (As I have stated in previous articles, whenever I claim that something is deemed to be a certain way “in principle”, it’s because there might be slight exceptions. We will also address this in a future article). For the purposes of the deed, owners of both of the properties involved must appear before the notary public and the easement must be thoroughly described (type, area, address, if it’s subject to a term and so on).

In the end, and as it has been subtly implied, there are a number of reasons why an easement may be terminated. For example, expiration (an easement can be constituted for a specific term or made conditional), what is established in the law as “confusion” (meaning that it could be discontinued as a result of the union of the dominant estate and servient estate, in which case there would be just one person holding the ownership of both estates), or even by negative prescription (if an easement is not used for a considerable amount of time, it means that it doesn’t have any utility, therefore, in principle, there would be no justification for such an encumbrance to be constituted over a particular property).

As outlined before, there are several types of easements that respond to different circumstances and are directed towards the satisfaction of certain needs, depending on the type of property. We will address some of the most relevant ones in an upcoming article.

Kind regards (and thank you for the time spent reading).

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Diego Aguilar

Diego Aguilar

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