WHAT IS AN EASEMENT OF WAY?
According to the current legislation of the Civil Code, the easement of way is considered a real right that establishes the limits of a property called servient estate because it can be crossed through it to reach another property known as the dominant estate.
This special condition is regulated in Title VII, in articles 564 to 570 of Section 3 of the Civil Code referring to the easement of way.
WHAT IS THE EASEMENT OF LIGHTS AND VIEWS?
The easement of lights and views is the right that a property has over a neighboring property regarding the right to have openings, windows, balconies and others on a wall. It is linked to the neighboring relationship in which one property is considered the dominant and the other the servient.
The lights refer to any opening through which light passes. Views is the opening of windows, balconies or overhangs with a straight view to the neighboring property.
HOW ARE THESE REAL RIGHTS ACQUIRED?
In the case of an easement of way:
According to Art. 564 of the Civil Code an easement of way is established according to the following reality:
“The owner of a property or estate, nestled among other properties and without access to a public road, has the right to demand passage through the neighboring inherited properties, after the corresponding compensation.
If this easement is constituted in such a way that its use can be continuous for all the needs of the dominant estate by establishing a permanent way, the compensation will consist of the value of the land occupied and the amount of the damages caused to the servient estate.
When the passage necessary for the cultivation, the farm interlocked among others and for the extraction of its crops is limited through the servient estate without a permanent way, the compensation shall consist of the payment of the damage caused by this encumbrance.”
What does this imply?
The easement has as its source an agreement between the parties, an agreement or contract that can be onerous, that is to say, that implies the fixing of a price, although it can also be given free of charge, with few formal requirements (it can be verbal or written in a private document or before a Notary Public). It can even be established in a will as the last will of the deceased.
The easement of way serves the dominant estate, that is, it allows access to its lands, so it is even possible, following the provisions of article 563 of the same code, to make improvements or works that allow a proper use and conservation of the easement.
Thus, it is clearly understood that as long as this situation lasts, the owner of this easement is the owner of the so-called dominant property.
Moreover, Article 545 refers to the following:
“The owner of the servient estate may not in any way impair the use of the easement constituted.
However, if by reason of the place originally assigned, or of the form established for the use of the easement, it should become very inconvenient for the owner of the servient estate, or deprive him of making important works, repairs or improvements thereon, it may be changed at his expense, provided that another equally convenient place or form is offered, and in such a way that no prejudice results to the owner of the dominant estate or to those entitled to the use of the easement”.
In the case of an easement of views and lights:
Easement of lights:
The owner of the dominant property has the right to open holes in the non party wall in order to obtain more light. The owner of the servient estate cannot oppose this action.
However, the owner of the ‘servient estate’ will be entitled to the creation of a wall contiguous to the wall. He also has the possibility to close those lights if the wall becomes party wall. Except in cases where:
- The properties are separated by a public road.
- There is a previous agreement.
- It is a right of lights acquired by prescription of 20 years from the execution.
- In the case of party walls it is not possible to open these openings without the consent between the parties, as established by law.
In this sense, according to art. 580 of the Civil Code: “no party between party walls can open a window or any other opening in a party wall without the consent of the other party”.
On the other hand, the lights that can be acquired must comply with certain characteristics in accordance with the provisions of art. 581 of the Civil Code:
- Maximum dimension of 30 square centimeters.
- Attached to the wall by iron grating.
- Fixed with wire netting.
According to the same art. 581 of the Civil Code: “However, the owner of the estate or property adjoining the wall where the openings are open may close them if he acquires the party wall and it has not been agreed otherwise. He may also cover them by building on his land or by erecting a wall adjacent to the one with said opening or window.”
Right to views:
The Civil Code establishes the possibility of having windows, balconies or overhangs that have a view over the adjoining property. This implies that, if the legal requirements are met, there could be no opposition to the view.
These requirements are in accordance with Art. 582 of the Civil Code:
- Located on a non adjoining wall.
- Minimum distance of 2 meters between wall and property, in the case of straight views.
- Minimum distance of 60 centimeters between wall and property, in the case of oblique views.
In any case, according to art. 583 of the Civil Code: “The distances mentioned in the previous article will be counted in the straight views from the exterior line of the wall in the openings in which there are no overhangs, from the line of these where there are, and for the oblique views from the line of separation of the two properties.
Exceptions are determined in the same regulation. That is to say, these minimum distances between non party wall and property will not be applied when::
- The properties are separated by a public road (article 584 of the Civil Code).
- The constitution of the views was made by means of a contract or a title. In this case the owner of the servient estate may erect a wall three meters away (article 585 of the Civil Code).
- It is a right of view acquired by prescription of 20 years from the moment of its execution.
- In the case of party walls, the construction of views is only possible with the consent of the other party.
There is also the legal figure of the acquisition of the easement by apparent sign. The following requirements must be met in order for this to be fulfilled:
- Disposal of one of the properties.
- Creation and conservation by the owner.
- Existence of the apparent sign between both properties established by the owner.
- That the apparent sign does not disappear before the deed of alienation.
DURATION OF THE EASEMENT AND LOSS OF OWNERSHIP:
According to the legislation in force, the owner of the servient estate may request the extinction of this real right when already the easement of passage in practice remains without use, following the stipulations of Article 568 of the Civil Code which reads as follows:
“If the passage granted to an enclaved property ceases to be necessary because its owner has joined it to another that is contiguous to the public road, the owner of the servient estate may request that the easement be extinguished, returning what he would have received for compensation.
The same shall be understood in the case of the opening of a new road giving access to the enclaved property.”
Moreover, Article 546. 2 of the Civil Code clearly states that easements are extinguished by “non-use for twenty years”. Thus, if 20 years have passed since the initial owner constituted the easement, until he put the last element of goodwill in place, it would simply have prescribed.
THE “INCESSANT” NATURE OF THE EASEMENT OF VIEWS AND LIGHTS AND THE POSSIBILITIES OF ITS PRESCRIPTION:
The use of lights and views can be continuous and incessant. Case law clearly states that this continuity has repercussions on the types of existing prescriptions.
- Acquisitive prescription: it is the one that is linked to usucaption and can only be continuous easements. Discontinuous easements can only be acquired by title.
- Extinctive prescription: the term for its extinction is 20 years, but the starting date for the calculation varies.
- Continuous easement: As from the execution of an act contrary to it.
- Discontinuous easement: from the moment it ceased to be used.
Special emphasis must be made on the negative character of the easements of views and lights as far as this is concerned, since this obligation is understood as a precept of “non facere”, that is to say, of prohibition to do, since, if one of the owners has the lights in the own wall, of the adjoining one does not have the right to cover them. The acquisitive prescription of this obligation will be twenty years.
The negative, incessant and apparent character of the easements of lights and views, as well as of the incursion the its extinctive prescription in the process of acquisition by usucapion, can also be appreciated in what is provided by the jurisprudence of the Supreme Court, more recently in the auto its judgments STS 1640/2016 , to April 15, 2016 and STS 1624/2022 , to April 26, 2022.
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