Articles 220 to 224 of the Property Code (SPZ) are relevant to the termination of easement in rem.

The easement shall be terminated on the basis of a legal transaction, a decision, or the law (Article 220 of the Property Code).

– termination on the basis of a legal transaction

In this way, the easement in rem is terminated on the basis of a binding legal transaction and deletion from the land register. The obligatory element of the binding legal transaction is the land registry permit, by which the owner of the dominant property explicitly and unconditionally allows the deletion of the easement in rem. The easement in rem then expires when the termination or deletion of the easement in rem from the land register is registered.

If the easement in rem is obtained outside the register, its deletion from the register has no bearing on its termination because it was never registered there. Thus, in the judgement VSL I Cp 3139/2010 of November 24, 2010, the Higher Court in Ljubljana decided: “It is the appellant’s position that the entry of the deletion of an easement in rem requires an explicit and unconditional statement of the owner of the dominant property to waive the easement in rem of walking and driving, but in the present case it must be remembered that the easement in rem of walking and driving could only be obtained outside the register. As the Court of First Instance correctly held, its termination did not require its removal from the land register because it was never registered there. Consequently, the correct conclusion is that the relevant provision of the court settlement expresses the litigants’ desire to terminate any easement in rem on land plot no. 8 cadastral municipality V.”

– termination on the basis of a decision

The easement in rem shall be terminated by the res judicata or finality of a judicial or administrative decision issued by the competent authority within the framework of statutory powers, by which it decides to terminate the easement.

The easement may be terminated by the owner of the servient property, through an action brought against the owner of the dominant property, due to the ineffectiveness of the easement in rem, or because the circumstances under which the easement arose have changed.

According to the High Court of Ljubljana in the case VSL I Cpg 777/2020 of December 15, 2021, an easement in rem terminates if it becomes (due to changed circumstances) useless for the dominant property, with the uselessness being objective and complete, as stated in Article 222 of the Property Code. When evaluating its usefulness, the latter must be based on the requirement of the dominant property. The High Court went on to say that failure to enforce an easement in rem does not necessarily mean that the easement is no longer useful. However, if the easement is not enforced due to changed circumstances (in this case, the failure to enforce the easement was the result of the suspension of the X. settlement project), the failure to enforce the easement is the (first) objective sign for assessing its usefulness. In this case, the court also determined that the temporary suspension of the X. settlement project is still considered a suspension of the project, which in concrete circumstances constitutes a changed circumstance within the meaning of Article 222 of the Property Code, and that the easement in rem is no longer beneficial to the dominant properties as a result of the project’s temporary suspension (and thus the suspension of infrastructure construction on the dominant properties). Because the easement right is established solely to meet the needs of the dominant property, only changed circumstances relating to the dominant property can be considered; changed circumstances relating to the servient property are irrelevant for determining the termination of the easement right (as discussed by the Higher Court in Ljubljana in the judgement VSL I Cp 1500/2002 of April 16, 2003).

– termination on the basis of the law

According to the law, the easement in rem terminates once the statutory conditions are met. If a dispute arises between the owners of dominant and servient property regarding the existence of an easement in rem, the court shall issue a declaratory decision on the (non)existence of an easement in rem. Article 223 of the Property Code specifies three reasons for the termination of an easement on the basis of the law, namely: – if the owner of the servient property resists its execution and the owner of the dominant property does not exercise his rights for three consecutive years (the so-called release of easement – usucapio libertatis); – if it is not executed within the time required for possession (easement limitation period); and – if the dominant or servient property is destroyed (destruction of the property).

   a) release of easement
It is a specially qualified form of easement termination due to non-execution. The owner of the servient property opposes its execution, which can be due to a verbal prohibition or a physical impediment (e.g., the installation of a fence), and the owner of the dominant property does not exercise this right for three consecutive years. Any re-execution of the easement by the easement beneficiary will halt the process of the easement release. Enforcement may be of a legal or factual nature, and may involve activities that are contrary to the conduct of the owner of the servient property who opposes the exercise of that right. These are, therefore, activities aimed at circumventing its prohibition. The starting point or criterion for determining whether a right has been exercised and enforced cannot be (merely) the ultimate success of the right’s exercise or enforcement. “In order for legal protection to be effective (in order to achieve the desired objective on the basis of a court decision by execution in the event of involuntary fulfilment of obligations), the easement beneficiary must truly initiate the appropriate procedure and enforce the appropriate (correct) claim,” stated the Supreme Court of the Republic of Slovenia in its judgement II Ips 75/2011 of May 15, 2014. However, the possible (in)efficiency of the procedure is not yet an indication of the (non)execution of the easement right and the removal of the owner of the servient property’s prohibition; if the dominant property owner exercises his right in an inappropriate or inadequate manner, this does not imply that he does not exercise the easement. The defendant’s failure to take the most successful legal path for the protection of his right, the enforcement of which is prevented by the plaintiff, does not imply that he has abandoned the exercise of his right. He requested the removal of a wall in enforcement proceedings, and the court did not deny him that he would not have an enforcement title for that purpose or that he would be unsuitable for the proposed enforcement. As a result, it (reasonably) could be assumed that his right is being protected and legally enforced in an appropriate manner, and that the plaintiff will not interfere with it once the right has been established by a final judgement. “ As a result, in order to legally exercise his rights, the easement beneficiary must initiate appropriate proceedings and enforce the appropriate (correct) claim. However, the possible (in)efficiency of the procedure is not yet an indication of the (non)execution of the easement right and the removal of the owner of the servient property’s prohibition. The Superior Court in Koper ruled on May 14, 2019, in decision I Cp 593/2018, that the plaintiff, by filing a nuisance lawsuit, opposed the defendant’s prohibition of easement execution, thus clearly expressing his intention to continue using the disputed route, and that the position of the appealed judgement, that only the actual use of the easement or (merely) the filing of a confrontational lawsuit can interrupt the limitation period for the release of easement, is unfounded. Thus, the nuisance lawsuit in this case also constituted an appropriate form of legal protection, interfering with the process of easement release, and thus the three-year period referred to in the first indent of Article 223 of the Property Code did not run during the course of proceedings. The High Court in Celje took a similar stance in its judgement of VSC Cp 228/2022 on 22 June, 2022.

In this case of easement termination, it is thus a matter of sanctioning the conduct of the dominant property owner, who does not ensure the protection of his right.

   b) easement limitation period
An easement in rem can also expire after 20 years if the owner of the dominant property does not use the easement. The easement limitation period, which leads to its termination, does not run while the servitude cannot be exercised due to objective obstacles, but not due to the owner’s prohibition (thus VSL judgement II Cp 1397/2009 of 3.6.2009). The subjective element (good faith, goodwill) is irrelevant during the easement limitation period. Only the objective fact of (non)execution of the easement’s possessory element is relevant. According to some legal theorists and case law, if the easement in rem is exercised to a lesser extent than its content, it ceases in the portion where it is not exercised (discussed in detail by Miha Juhart, Property Code with Commentary, p. 921 and VSL judgement I Cp 190/2010 dated April 20, 2010).

   c) destruction of the property
The easement in rem is terminated when a dominant or servient property is destroyed. Very rarely is the land physically destroyed; more frequently, the building to which the easement relates is destroyed. Legal property destruction is also possible if, for example, land ceases to exist as a land plot due to procedures of spatial implementation operations (e.g., land consolidation).