Right of easement: Passage, medians, lights, water
right of easement
The right of easement is that lien that falls on the immovable property, in which one is dominant and the other a servant, and in which the different types of easement rights are contemplated, such as the easement of passage, the easement of the party, the easement of aqueduct or passage of water, the easement of lights and views, drainage easement, and the rights and obligations of the dominant estate and the servant.
Definition of easement in jurisprudence
The jurisprudence states that the easement title is any onerous or free legal act, inter vivos or mortis causa by virtue of which this limitation is established to the property right carried out by the owner of the servient estate.
The spirit of the right of easement
The spirit of the easements is none other than to allow rational exploitation and use of the properties or farms.
An owner would gain nothing by owning a farm if he has no way of getting to it because other properties get in the way. Therefore, the existence of the easement of transit or passage.
Nor would anything be gained by having a farm if it lacks water and there is no way to transport it because the owner of the other farm opposes it. For this reason also the existence in the civil use of the easement of the aqueduct.
Characteristics of the right of easement
- It is a right that limits the domain or property
- He is always chained to property.
- Requires the concurrence of two properties, dominant and servant.
- It is a right over another’s property
- It can consist of allowing something to be done or demanding that it not be done.
- There needs to be a utility.
Article 552 of the Civil Code states that the lower properties are subject to receiving the waters that naturally, and without the work of man, descend from the upper properties, as well as the stone or earth that they drag in their course.
The owner of the lower property cannot carry out works that prevent this easement, nor can the owner of the upper one carry out works that aggravate it.
Article 586 of the CC points out that the owner of a building is obliged to build its roof or cover so that rainwater falls on its own soil or on the street or public place, and not on the neighbor’s soil.
Even falling on the ground itself, the owner is obliged to collect the water so that it does not cause damage to the adjacent property. Easement by Prescription
It consists in the fact that when the person wants to use the water that he can dispose of for his farm, he has the right to make it pass through the intermediate properties with the obligation to indemnify their owners and those of the lower properties on which the water leaks or falls.
Aqueduct easement requirements
In order to establish this easement, three requirements are required :
- That the owner of the possible dominant property demonstrates that he can dispose of the water and that it is sufficient for the use for which he assigns it.
- That the passage of the aqueduct is the most convenient and least burdensome for a third party.
- That the owners of the servant properties (or the only one) be compensated prior to the construction of the aqueduct for the damage suffered. They will also have to pay for the construction and conservation works of the aqueduct in good hygienic and service conditions.
Limitations of this easement
The only limitation of this easement is that it cannot be imposed for purposes of private interest on buildings, or their patios or dependencies, or on already existing gardens or orchards since the legislator understands that this would be an excessive sacrifice for the owner of the servient property. .
Regulation of these easements
The aqueduct easement is regulated in the Civil Code in articles 557 to 561 in relation to the provisions of Royal Legislative Decree 1/2001, of July 20, which approves the consolidated text of the Water and Royal RIGHT OF WATER EASEMENT Royal Legislative Decree 1/2001, of July 20, attributes to basin organizations the power to impose the forced easement of aqueduct «in accordance with the provisions of the Civil Code and the Regulations of this Law ”, and article 18.2 of Royal Decree 849/1986, of April 11, which approves the Regulation of the Hydraulic Public Domain, determines that “it will be governed by the provisions for the easement of the aqueduct in the Water Law, in this Regulation, and secondarily in the Civil Code”.
In terms of drainage, article 587 CC indicates, regarding the so-called roof easement, that the owner of the property that suffers said easement may build receiving the water on his own roof or giving them another outlet in accordance with local ordinances or customs and so that there is no encumbrance or damage to the dominant property.
The waters that fall into someone else’s yard
Establishes the art. 588 of the Civil Code, that when the corral or patio of a house is located between others, and it is not possible to give an outlet for the rainwater that is collected in it, the establishment of the drainage easement may be required, giving way to the waters through the point of the contiguous properties where it is easier to exit and establishing the drainage conduit in the manner that causes less damage to the servient property after the corresponding compensation.
This case is designed for natural and permanent currents of water, in order to respond to the problems generated by rainwater in urban land and thus, applying this Jurisprudence, in conclusion, the issue of rainwater drainage in Urban land cannot be solved in general through the establishment of easements with respect to adjoining properties at a descending level, by article 552 CC only applicable to rural properties.
Distances in construction and plantation easements
In the art. 589 to 592 CC, establish minimum distances that must be kept in certain constructions or plantations for reasons of the neighborhood or military interest.
The art. 589 CC prevents building or planting near strongholds and fortresses (today we will have to understand barracks, although the norm must be subject to restrictive interpretation) without being subject to laws, ordinances, and special regulations.
It is prohibited to build near another’s wall or dividing wall, wells, sewers, aqueducts, ovens, forges, chimneys, stables, deposits of corrosive materials, artifacts that move by steam, or factories that by themselves or by their products are dangerous or harmful, without keeping the distances prescribed by the regulations and uses of the place, and without executing the necessary protection works, subject to the manner and conditions that the same regulations prescribe.
Easements lights and views
The easement of lights and views must be qualified as continuous since its use can be incessant, and apparent since it is continuously visible by external signs that reveal its existence, as defined by article 532 CC.
This implies that to acquire said easement it is necessary, as indicated in article 537 CC, the existence of a title or the prescription of twenty years. Easement by Prescription
The condition of the easement of lights and views
The easement of lights and views has the condition of continuous and apparent, as its use is or may be incessant without the intervention of any act of man and it is announced and is continuously visible by external signs that reveal its use and exploitation.
The prescription of the right
The only way to acquire said possession would be the prescription of 20 years.
However, in order to determine if the acquisition by prescription is possible, it would be necessary to resort to the consideration as negative or positive of the aforementioned easement of lights and views that the open holes would represent.
It must be taken into account that the possibility of opening holes in the wall itself constitutes a mere tolerance not subject to possessory protection and that, in accordance with the provisions of the article. 581 CC, this situation can cease at the will of the owner of the adjoining property that builds a wall on his own land, even if it obstructs the window opened by the neighbor in his wall. EICR certificate