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WHICH EASEMENTS CAN BE ENTERED IN THE LAND REGISTER?
Easements play an important role in selling and buying property. Some easements are completely unproblematic for a property sale and pose no problem for the buyer.
WHAT IS AN EASEMENT?
Easements are entered in the land register. They are rights in rem over plots of land. These rights restrict the owner of the encumbered plot and give the beneficiary the right to use the plot "made subservient" to a certain extent. This extent is precisely defined.
There are three types of easement in total:
- Real servitude (Grunddienstbarkeit)
- Limited personal servitude (beschränkte persönliche Dienstbarkeit)
- Usufruct (Nießbrauch)
A REAL SERVITUDE NEED NOT BE A DISADVANTAGE
A real servitude always affects two plots. One plot is encumbered and the other benefits. In this context one speaks of the servient and the dominant plot. A real servitude can take various forms – for example, a right of way or a right to lay pipes and cables. In practice this means that the beneficiary has the right to run pipes for sewage, gas etc. across the encumbered or servient plot. Especially in towns, rights to lay pipes are often registered and as a rule have no negative effect on the sale or purchase of a property.
The disadvantaged plot can, however, also be affected by a building ban or building restriction. For example, a certain distance to the boundary may be prescribed or the building height limited. On some plots commercial use is excluded or restricted.
LIMITED PERSONAL SERVITUDE
A personal servitude is always granted for a specific person. This person may, but need not, be the owner of the plot. The person has the right to a precisely defined use of the plot – for example, a right of residence or a permanent right of use. Some parents use personal servitudes when they transfer the property to their children.
USUFRUCT CAN RESTRICT A PROPERTY SALE
Usufruct is used above all in connection with inheritance law. A typical example: Mr Würzer appoints his son Franz as his sole heir. At the same time he has a usufruct registered for his wife for a residential house that belongs to his estate. His wife, as usufructuary, is not entitled to sell the house or encumber it in any other way. Only the owner can exercise this right. Properties encumbered with usufruct are very rarely offered on the open property market.