In the previous professional contribution, we defined the concept of easement in rem, its origin and legal protection. Easement arises, among other things, on the basis of the law, and this is by possession, when all of the prescribed conditions are met.

Possession gives rise to an easement in rem if the owner of the dominant thing has exercised the easement in good faith for ten years (first paragraph of Article 217 of the Property Code – SPZ), i.e. proper possession of an easement in rem. The easement in rem arises by possession even if the owner of the dominant thing has actually exercised the easement for twenty years, and the owner of the servient property has not objected to this (second paragraph of Article 217 of the Property Code), i.e. improper possession of an easement in rem.

Proper possession of easement in rem

The owner’s good faith, the exercise of easement, and the expiration of a ten-year period of possession are the conditions for proper possession. If the possessor does not know and cannot know that he has not acquired the easement right, or if he exercises the easement believing that he has acquired it in a valid manner, he is acting in good faith. The preceding means that the possessor must have a suitable address in order for the easement to be executed, and it is later demonstrated that the address is deficient and invalid (Dr. Miha Juhart, Property Law, GV Publishing House, 2007, p. 603, discusses this in detail). According to the Superior Court of Maribor in its judgement I Cp 851/2020 of January 12, 2021, for possession under the provision of the first paragraph of Article 217 of the Civil Procedure Act, there must be a legal transaction at the start of the enforcement of the easement, for which it is established after the ten-year period of possession that it was null and void, because otherwise the possessor’s good faith is not given. Therefore, at the very least, an agreement on the enforcement of the right of easement must be concluded. The High Court in Ljubljana adopted the position in judgement I Cp 156/2019 of May 22, 2019, that the mere prior and actual execution of the easement cannot lead to the conclusion that the plaintiff was in good faith that she had already obtained the right of easement. Specifically, the plaintiff justified her good faith by referring to her legal ancestors’ 15-year use of the route and, as a result, the likelihood of concluding an agreement on the establishment of a beneficial easement between the legal ancestors of the properties parc. no. 2532/669 and 2532/657, both cadastral municipality X., i.e. between the companies A., d.o.o. – in bankruptcy and B d.o.o. – in bankruptcy, which was supposed to constitute the basis for the plaintiff to consider that she had the right of easement in rem. The Court of First Instance determined that the plaintiff could not have been in good faith about the existence of her right, given that the plaintiff’s legal representative stated that he did not know that the companies A. d.o.o. – in bankruptcy and B d.o.o. – in bankruptcy would have concluded an agreement on the establishment of easement. The Higher Court in Ljubljana ruled in the case VSL judgement II Cp 1102/2016 of May 11, 2016, that the authorisation for the use of the route given by the manager of the properties along which the route runs provides the basis for the conclusion of the bona fide execution of the easement. The Supreme Court of the Republic of Slovenia stated in judgement II Ips 428/2007 of April 15, 2010, that the mere fact that the seller showed the plaintiff the disputed route when purchasing properties is insufficient to establish the plaintiff’s good faith in the sense of Article 217 of the Property Code.

Improper possession of easement in rem

Improper possession does not require good faith, but rather the regular exercise of a twenty-year easement in rem, to which the owner of the servient property did not object.  The number of objections is unimportant, and only one is required if it is clear and unambiguous, as determined by the High Court in Ljubljana in its judgement and decision VSL I Cp 2794/2013 dated May 14, 2014. As a result, it is a legal presumption that if the owner of the servient property permits the actual execution of the easement for an extended period of time and does not object, he agrees to its establishment. According to the High Court’s decision in Ljubljana II Cp 211/2021 of May 18, 2021, “the plaintiff stated that the hayrack on the dominant property was regularly accessed both on foot and by means of transport – especially agricultural ones, as the building (hayrack) or the dominant property was used or is still used for agricultural activities. At the same time, the appellate court explains that the subject of the claim is the determination of the easement of walking and driving on the defendant’s properties for the needs of the plaintiff’s agricultural land, so occasional rides may be possessed if carried out to the extent necessary for agricultural land management. The appellate argument that the plaintiff should have specified how many times she used the contested route because the easement could only be possessed to that extent is thus unfounded. The plaintiff also claimed that until 2017, no one had ever objected to the use of the route. The summary of arguments shows that the plaintiff stated all of the decisive facts concerning the actual execution of the easement, which no one opposed for a long time. Therefore, the Court of First Instance chose the correct substantive legal starting point for the case, namely the second paragraph of Article 217 of the Property Code (in accordance with Article 54 of the ZTLR), which governs the improper possession of easement in rem.”

The scope and content of the acquired easement in rem

Possession of an easement is limited to the extent and manner in which it has been exercised throughout the period of possession. In the case of establishment through possession, the manner of execution determines its content. The High Court of Ljubljana adopted the position in the decision VSL II Cp 2861/2016 of February 1, 2017 that “in determining whether the easement in rem was possessed by all vehicles, the court must determine whether the easement was actually exercised by different vehicles (waggon, car, tractor, truck…) for the entire period of time required for possession (20 years), unless the different method of enforcement is due to technological progress (a more modern means of transportation) and the modern means of transport is used for the same purpose as the previous vehicle.” The High Court in Ljubljana I Cp 925/2011 decided on March 30, 2011, that “if the plaintiff drove on the disputed route only very infrequently (“every now and then”) and used other routes for access to the dominant property, he could not possess easement.” In contrast, the High Court of Ljubljana ruled in judgement I Cp 2623/2012 of May 8, 2013, that “occasional driving does not constitute an obstacle to the possession of driving easements if it was carried out regularly within a specific purpose.”

Exclusion of possession of easement in rem

Easement in rem, on the other hand, may not be possessed if the owner of the dominant property has abused the trust of the owner or direct possessor of the servient property, if the easement was obtained through force or deceit, if the easement was granted until revocation, or if it was a negative easement (paragraphs 3 and 4 of Article 217 of the Property Code).

Possession is excluded if the easement was exercised in a way that was imperceptible to the owner of the servient property or if it was exercised in the owner’s absence. The same is true when the owner of the servient property allows acts that constitute the exercise of easement as a gesture of kindness but not with the intent of establishing easement and where the exercise of easement is permitted until revocation. By judgement of the VSL I Cp 2845/2016 of March 22, 2017, the High Court of Ljubljana thus held that “the Court of First Instance correctly concluded that the defendants were aware that easement is allowed until revocation. For this reason, the claim under the first paragraph of Article 54 of the ZTLR or the second paragraph of Article 217 of the Property Code (enforcement of easement for twenty years without the opposition of the owner of the servient property) is unsubstantiated, because the easement in rem in the case where easement is allowed until revocation cannot be possessed. ” The Supreme Court of the Republic of Slovenia, on the other hand, stated in its decision II Ips 184/2017 of February 14, 2019, on the acquisition of a negative servitude, that “the essential feature of negative servitudes is that their actual execution is not visible from the outside, which is why their possession is prohibited.“