What is easement in rem?

Easement in rem is a right in rem on third party’s property. The owner of a property (dominant property) carries out certain actions on a third party’s property (servient property) to meet certain needs related to the dominant property, which is the content of a positive easement. Negative easement, in substance, means the claim of the owner of the dominant property against the owner of a servient property that the latter should refrain from certain actions that might otherwise be performed. The exercise of negative easements is not outwardly perceptible.

The most typical examples of positive easements are the right of way, installation of pipes, cables, etc. on the servient property. Typical examples of negative easements are, for example, the prohibition of increasing the height of a building, the prohibition of blocking the view, etc. An easement shall never oblige the owner of the servient property to take any actions.

The purpose and intention of easements in rem is to facilitate or enable the use of the dominant real estate property. Each easement in rem arises from the connection between two properties. It shall be executed in a manner that is least burdensome on the servient real estate. In order to avoid disputes, the content of the easement must be precisely defined at the time of its establishment (in which part of the real estate it shall be executed – length, width of the road, means of transport used, etc.).

Since the easements in rem are established for the benefit of a particular property, they are transferred together with the property concerned. Easement in rem can be exercised by anyone who uses the dominant property. Anyone who wishes to get to the dominant property can use the road easement. Easements in rem are not linked to a specific person.

The duration of the easement in rem may be time-bound (limited, e.g. particular time of the year) or may be unlimited.

In what way an easement in rem is established?

Any easement in rem is established by the law, on the basis of a legal transaction or by a decision of a state authority. Easement established by the law is created if the legal conditions are met, and its creation does not require registration in the land register. Also, no entry in the land register is required for an easement established on the basis of a final decision of the court or an administrative authority. Notwithstanding the foregoing, entry in the land register is important in view of the principle of confidence in veracity of the land register, hence in any case it is recommended. An easement may occur without the consent of the owner of the property, i.e. establishment on the basis of a law or a decision of the competent authority (original method of establishment). If the owner of the servient property agrees to the establishment of an easement, it is created on the basis of a legal transaction and we speak about a derived method of establishment.

The easement agreement is a binding legal transaction whereby the owner of the servient real estate property undertakes to establish an easement in rem on their real estate with the purpose of fulfilling certain needs of the dominant real estate property. Such agreement must be concluded in writing and contain information about the concluding parties and the real estate properties with a detailed description of the easement in rem to be established. It can be gratuitous or purchased. The conclusion of a binding legal transaction must be followed by an enforceable legal transaction (land registry permission). Based on the land registry permission, the entry of the easement in rem in the land register follows. Only by completing all three steps, the easement in rem is established validly.

The land register shall contain a precise description of the content of the easement which must be identical to the document representing the basis for the entry in the register. Where the exercise of an easement is limited to certain parts of the real estate, these physical boundaries shall be described in detail in the content description of the easement.

Legal protection of the easement in rem

Easement in rem is an absolute (exclusive) right which takes effect against all third parties (erga omnes). The easement in rem is subject to legal protection to the extent appropriate to its content. In addition to the general remedies for the protection of rights, the easement beneficiary also has a special action for the protection of easement called actio confessoria.

The general tool for the protection of civil law positions is self-help. It is a right to deter the infringement of a right where imminent danger exists, if such protection is necessary and where the means of deterring the infringement correspond to the circumstances in which the danger arises. Since self-help excludes the unlawfulness of a conduct, the easement beneficiary does not suffer the adverse consequences of their conduct. In judgement II Cp 613/2018 of 22 October 2018, the Higher Court of Ljubljana ruled that the substantive legal position of the Court of First Instance saying that the unlawfulness of a conduct (demolition of a fence) could only be excluded by self-help, as defined in Article 139 of the Obligations Code, represents a misinterpretation. The owner who makes use of self-help (Article 31 of the Law of Property Code) is not responsible for the damage caused to the person trespassing their property.

As regards legal protection, it should further be pointed out that the holder of a positive easement in rem may claim protection of possessory rights. The exercise of de facto control corresponding to the content of a positive easement shall be deemed to be the de facto possession which grants the person exercising that control the right of possessory rights protection. In the case of possessory protection of the subject matter of easement, the assertion of easement is not necessary, as possessory protection protects the manner of exercising effective control independently of the legal basis. It is necessary to prove partial control over the subject matter and, to that extent, the possessory protection of an easement shall also be granted. According to the general rules on possessory protection, the scope and other conditions of possessory protection shall be assessed. The Higher Court of Ljubljana, in the decision VSL I Cp 229/2018 of 30 May 2018 found that “the Court of First Instance erroneously applied substantive law when assessing the dispute in accordance with the provision of Article 212 of the Law of Property Code and sought the basis of the claim in the protection of the easement right, instead of dealing with possessory protection. Namely, the plaintiff filed an action for trespassing, made all the compelling arguments in this regard, and also proposed the issuance of a decision finding trespass, restoration of the previous state of possession and prohibition of further trespassing etc. For property protection, the asserted and proven partial control over the subject matter suffices, while the assertion of the right on which such control is based (easement in rem) is irrelevant. In the specific case, the claims correspond to this, since the plaintiff claimed that they use the road on the plot 639/4 cadastral municipality X, and the defendant trespasses such possession on this road (by parking his car), and therefore requests possessory protection”.

Wherever possible, in the event of an intervention in the enforcement of an easement, the easement beneficiary is likely to opt for possessory protection due to procedural rules. When possessory protection is not possible (in the case of a negative easement or claim preclusion), an easement action (actio confessoria) shall be considered. The first paragraph of Article 212 of the Law of Property Code stipulates that the easement beneficiary may, if unduly disturbed in the exercise of an easement, by an action, request that the trespassing or interference be terminated. The second paragraph of Article 212 of the Law of Property Code refers mutatis mutandis to the first paragraph of Article 99 of the Law of Property Code, according to which the plaintiff may also request the prohibition of further interference with the easement or prevention of its exercise. The easement beneficiary, as the plaintiff, must prove the existence of the easement, which also includes proving their ownership of the dominant property. In addition, the easement beneficiary must also demonstrate an interference with the easement right that interferes with or prevents the easement exercise. Any conduct that interferes with the manner in which an easement is exercised, but does not significantly affect it, shall not be considered as disturbance. Conduct constituting disturbance must be specified precisely enough in accordance with the general rules. In the judgment I Cp 1149/2020 of 7 October 2020 the Higher Court of Ljubljana ruled that “the essential finding of the Court of First Instance is that access to the cesspools by easement road is still possible, respectively that the construction of the bank does not make it significantly difficult. The Plaintiff still uses this road from time to time, which means that the constructed reinforced bank does not interfere with the easement road to such an extent that it would no longer be possible to walk on it, and it is sufficiently consolidated hence it does not pose a real risk of collapse and blockage of the easement road. A slight narrowing of the easement road in one part to a width of 1,13 metres is not such as to make it impossible or difficult to walk on the disputed road.” Furthermore, the Higher Court of Ljubljana also ruled in Judgment I Cp 257/2020 of 17 June 2020 that “by installing the door with a lock (and attempting to serve the keys to the plaintiff, who refused to accept it, the defendant did not exercise their property rights in a way as to prevent or significantly hinder the plaintiff from exercising the right of way. Unlocking/locking and opening/closing the door on the way does not impose such a burden for the plaintiff as to grant them protection under the actio confessoria. Sand filling and parking on the road is an act that constitutes an impermissible interference with the enforcement of the plaintiff’s easement entitlements.” However, the Supreme Court of the Republic of Slovenia, by decision II Ips 749/2005 of 22 February 2007 ruled that “the installation of a fence at the beginning of an easement road represents the exercise of ownership rights of the person liable under the easement, which is limited by the manner and scope of the easement exercise. However, since the easement must be exercised in the least burdensome manner (Article 219 of the Law of Property Code), the interference with the possession of the easement is therefore not given if the owner hands over to the easement beneficiary the key of the door installed in the fence.” At this point, the judgement of the Higher Court in Ljubljana II Cp 2772/2017 of 21 March 2018 is worth noting, in which the Court of appeal agreed with the reasons of the Court of First instance that “even short-term parking, when it is necessary to seek the vehicle operator to move it, impedes the exercise of the easement right. The reference of the appellant to the fact that stopping the vehicle due to the exit of passengers or the unloading of a load does not constitute parking is irrelevant. Hence, the decision of the Court does not apply to such cases. Nor can the defendant succeed in invoking the principle of considerate enforcement of easement, since this principle cannot be interpreted in such a way that the easement beneficiary must intervene again and again in order to achieve the objective for which the easement was established, that is, in the specific case a free road.”