Easements and the New Property Law: Updated Definition, Applications, and Key Changes

Although easements are often perceived as old-fashioned, they are a legal mechanism with which both property developers and public authorities are regularly confronted. With the entry into force of the new Book 3 ‘Property’ of the Civil Code, on 1 September 2021, the chapter on easements (articles 3.114 to 3.137 of the Civil Code) has been modernised.

What is an easement pursuant to Article 3.114 of the (new) Civil Code?

Article 3.114 of the Civil Code defines an easement as follows: “An easement is a burden on a property, the servient estate, for the use and benefit of another property, the dominant estate.”. This definition is similar to the old Civil Code but contains two major differences:

1. Using the term “real estate” instead of “building” or “plot” removes ambiguities regarding the establishment of an easement.
2. An easement can be established between two properties owned by the same person if one of the properties is encumbered with a usufruct granted to a third party (Article 3.114, 1°), and between two properties where one is fully owned and the other co-owned by the same person (Article 3.114, 2°).

How are easements utilized in the green energy sector?

The recent legal changes are particularly relevant for developments in the green energy sector, as an easement can be established on or for wind turbines and solar panels without designating the underlying land as servient or dominant estates.

Additionally, under the old law, certain structures like wind turbines and bridges were not always classified as “buildings.” However, the new term “real estate” now clearly includes these structures.

How has the legal uncertainty over “continuous” and “non-continuous” easements been resolved?

Under the old Civil Code (Article 688), a distinction was made between “continuous” and “non-continuous” easements. An easement was considered continuous if its use was uninterrupted or could occur without human intervention, which proved often vague and uncertain in practice.

A key consequence was that only visible and continuous easements could be acquired by prescription, leading to extensive debate in court.

The new property law removes this distinction entirely, meaning that any visible easement is subject to prescription starting from September 1, 2021. This change has practical implications, as common easements like rights of way can now be acquired through prescription, which was previously impossible.

Out with the old and in with the new? Not quite!
What are the transitional regulations, and how does the old law remain relevant for existing easements?

The law enacting Book 3 “Property” of the Civil Code, dated February 4, 2020, includes the transitional rules in Articles 37 and 38. They state that the new laws apply only to easements created after the entry into force on September 1, 2021.

Consequently, all easements established before this date remain subject to the old regime, including all private easements agreed upon before September 1, 2021, but only officially formalized afterward. While there has been a modernization of easement law, the old rules must still be taken into account.

Are you dealing with an easement or have questions about property rights? The real estate law experts at DGDM are happy to provide tailored advice.

Contact us, and we’ll assist you as soon as possible.