Easement Violations: What to Do

Easements, also called servitudes, are part of real estate law and are regulated in Article 730 of the Swiss Civil Code. This states that “a piece of land […] may be encumbered for the benefit of another piece of land in such a way that its owner must submit to certain interventions by the owner of that other piece of land or may not exercise his or her property rights in certain ways for that owner’s benefit.” Easements are not to be confused with personal easements, which relate to a specific person and not to a piece of land.

There are different types of easements, such as usufruct and rights of way. Generally, easements oblige the owner of a property to fulfill certain conditions on the property. For example, an easement can prevent the creation of an opening (window, door) onto the property of neighboring houses. It can also allow neighboring people, for example, a passage across the other piece of land to access their house. An easement can also be established to prevent something, such as the creation of a pedestrian crossing. B. making the construction of a new building impossible.

There are different types of easements, the most common of which are the right of residence, usufruct, view easement, and right of way. A right of residence easement allows a specific person to live in a property. This right of residence is transferable only in the event of the death of a spouse, with the surviving spouse retaining a right of residence. This type of easement ensures that the surviving spouse is not evicted from the family home after death.

Usufruct (Article 745 of the Swiss Civil Code) can refer to movable property such as buildings. It allows the use of a property or asset without ownership, but subject to its proper maintenance. Usufruct is usually introduced in marriage or inheritance contracts. It allows the surviving spouse to continue living in the family home or to use it (by renting it). Ownership of the property is defined through the heirs of the deceased spouse.

The purpose of the view easement is to limit the possibility of constructing a window or other glass wall that would cause a privacy nuisance.

Finally, an easement can also be established through a right of way (Articles 662 and 694 of the Swiss Civil Code). In this case, one of the properties is burdened with a right of way, e.g., a path, and the other property has a right of access via that right of way. If the easement concerns a right of way, the contract must clearly state the type of access (path, trail, road, etc.), the restrictions surrounding it, the exact route of the access shown on a site plan, and who is responsible for maintaining the access.

The rights and obligations associated with an easement are stipulated in the easement contract, which is concluded in writing between the two owners. It is filed with the land registry and attached to the notarial deed. The beneficiaries are not only obligated to comply with the limits and measures associated with the easement, but must also bear financial compensation if the easement has a restrictive effect (e.g., if it causes usury).

In the case of an easement granting a right of way, the beneficiaries are therefore responsible for maintaining the path and must bear the associated costs. However, if the owner of the property also uses the path and benefits from it, the costs of construction and maintenance are shared between the two parties.

Because easements can lead to numerous conflicts, it is important to find out in detail before purchasing whether or not an easement exists and, if so, under what conditions it applies. When purchasing a property, the owner or the real estate agency handling the sale is obligated to provide the buyer with the deed establishing the easement. It is also possible to request an extract from the land registry before the sale to find out which easements are attached to a property.

To grant or benefit from an easement, a contractual relationship must be established. Personal easements can be granted through a marriage contract or an inheritance contract. Anyone wishing to grant a usufruct over a property must draw up an easement contract, have it notarized, and then register it in the land register.

An easement can also arise from the law, such as in the case of a right of way. Both the owner and the co-owner are affected by an easement. Since the easement is registered in the land register once it has been established, it remains in effect even if the property is sold and thus changes ownership.

On the other hand, the easement can be terminated if it is no longer needed or if the beneficiary waives it. The expiration of an easement must normally be effected by a legal deletion from the land register. This document is usually a contract concluded between the owners of the dominant and servient properties. The person with the dominant property can also unilaterally waive an easement registered in his or her favor and have it deleted from the land register.

In some cases, the owner of the servient property can petition the court to revoke an easement that no longer serves the dominant property, for example, if a passage easement is no longer useful because a public right of way now provides access to the neighboring building. The judge can decide whether to simply revoke the easement or to revoke it partially (thus, for example, reducing the area of ​​the easement).

For the expiration of the easement to take effect, it must be deleted from the land register. However, if the two properties affected by the easement are purchased by the same person or by the municipality as part of an expropriation, the easement will automatically expire.

Because easements grant rights and obligations, there is a risk of a breach of the easement, which can lead to conflict between the parties. These breaches can take various forms. For example, a breach of an easement occurs when the formal requirements of the easement agreement are not met or the easement is not registered in the land register. A breach of the right of way occurs, for example, when the property owner prevents access to the path by placing flowerpots or a fence.

If the easement concerns a right of residence, a breach occurs when a person other than the person named in the easement occupies the property. The exception is the case where the easement is transferred to the other spouse through a contract of inheritance after the death of one spouse.

If an easement is violated and no agreement can be reached between the two parties, it is possible to go to court. They can request proceedings for the seizure of property or interference with use, and a forced eviction. For complaints about the seizure of property and interference with use, the person must first request the return of their property after becoming aware of the easement violation. If this request is unsuccessful, a complaint can be filed. The law also provides for a right to compensation for the disturbance caused.