Easement

Easement - An easement is a right in rem that encumbers a parcel of land (the servient estate) in favor of the owner of another parcel of land (the dominant estate) and is recorded in Section II of the land register.

What does an easement regulate?

The easement is regulated in § 1018 BGB and is classified as a limited real right. It allows the owner of the dominant property to use the servient property in a specific manner, or it obligates the owner of the servient property to refrain from certain actions.

The most common types of easements in everyday real estate practice are the right of way (the right to walk or drive across another’s property), the utility easement (the laying and maintenance of water, sewage, electricity, or gas lines across another’s property), and the building restriction (prohibition of certain types of construction, such as a height restriction or a ban on commercial use).

There is a significant difference from the limited personal servitude under Section 1090 of the German Civil Code (BGB). While an easement is tied to the dominant property and automatically transfers to the new owner upon sale, a personal easement is granted to a specific person and is neither transferable nor inheritable. For buyers, this means: An easement remains in effect permanently as long as it is not deleted-regardless of who acquires the properties involved.

The registration is made in Section II of the land register for the servient property. It requires a notarized declaration of agreement and the consent to registration from the encumbered owner. Without land register entry, no valid easement is created-verbal agreements or private contracts are insufficient.

Impact on Value, Statute of Limitations, and Cancellation

An easement affects the market value of both properties. The servient estate generally decreases in value because its use is restricted. The dominant estate, on the other hand, may increase in value-for example, if a right of way secures the only access to a rear-facing property. In real estate valuation, the impact on value is assessed individually depending on the type and scope of the encumbrance.

An easement does not expire in the strict sense. However, it may lose its legal basis if it is not exercised over a long period of time in conjunction with changed circumstances. Deletion from the land register requires the consent of the beneficiary or can be enforced in court if the right has become obsolete. A mutual termination in exchange for compensation is also common practice.

Practical Tip for Nuremberg and Franconia

In the Nuremberg metropolitan region, easements are particularly common on rear-facing properties in established residential areas such as Erlenstegen, Mögeldorf, or Ziegelstein, where older parcel divisions often did not provide direct street access for rear properties. Historical rights of way and right of passage are also not uncommon on Franconian farmsteads in the surrounding area. We recommend that prospective buyers not only check the land register for encumbrances in Section III (mortgages), but also pay special attention to Section II. A current land register extract should be available no later than the start of purchase negotiations so that easements can be identified and assessed early on.

Frequently Asked Questions

Do I have to assume an existing easement when purchasing a property?

Yes, an easement registered in the land register is a right in rem and automatically transfers to the buyer upon transfer of ownership. It cannot be unilaterally revoked. Before the purchase, you should therefore check what specific restrictions result from the easement and whether they impair the intended use of the property.

As the owner of the servient estate, can I demand compensation?

When an easement is first established, compensation is usually agreed upon, the amount of which depends on the extent of the encumbrance. For existing, already registered easements, there is no retroactive claim to compensation-unless the scope of the easement is expanded or modified.

How do I find out if there is an easement on my property?

The most reliable source is a current land registry extract, which you can request from the competent local court or through a notary. Easements are recorded in Section II of the land registry. Additionally, the corresponding deed of approval can be viewed at the land registry office to determine the exact content and scope of the encumbrance.

Easements and Zoning Plans

Easements can significantly impact development projects. A development restriction in the form of an easement-such as a prohibition on constructing more than two full stories-can result in a property not being allowed to be developed to the planned extent, even if the zoning plan permits it. Such restrictions were frequently agreed upon in historic villa districts or quiet residential areas to preserve the character of the neighborhood.

When purchasing a property with the intention of developing it, it is therefore essential not only to review the applicable zoning plan but also to analyze the land registry for restrictions under private law. Even if the authorities grant a building permit, a neighbor from a dominant property may take civil action against the project if an easement is violated.

We recommend that developers and investors in the Nuremberg metropolitan region always review Section II when conducting due diligence on property purchases and fully assess the registered easements in light of the construction project.

Frequently Asked Questions - Additional Considerations

Can an easement be removed in exchange for compensation?

An easement can only be removed with the consent of the easement holder (the dominant property). In practice, the parties often agree on a redemption payment, the amount of which corresponds to the economic value of the easement for the dominant property. For a right of way that constitutes the sole access to a rear property, the redemption payment can be substantial-in some cases, it exceeds the value of small outbuildings. The agreement on the purchase price is notarized and then deleted from the land register. We recommend obtaining a valuation report before negotiating the purchase of an easement to determine the appropriate amount of compensation.

Back to the Real Estate Glossary.