EASEMENT

This month I discuss what can be a thorny issue between neighbours, namely ‘servidumbres’ or easements. An easement may be best described or understood as a limitation on one’s property so that neighbouring property owners may enjoy the peaceful enjoyment of their land. Most easements are imposed by law and the most obvious and immediate example is the ‘servidumbre de paso’ or right of way. In Spain, all property owners have the right of access to their property and no-one can unlawfully deny or be denied such. Accordingly, if one’s property is land locked i.e. with no direct access to or from a public highway, save by passing over neighbouring property, one can apply to the court for access and one can guarantee that such will be granted. Generally, the judge, with assistance from experts, will determine the shortest and least inconvenient route of access, for all parties, from the nearest road to one’s property and order that access be duly granted - subject to one paying the market value, as determined by an expert, for the ‘right’ to use the neighbour’s land.

Other easements can be created and agreed by individuals voluntarily (‘servidumbres voluntarias’) and will bind any new owner moving onto or into the property - if formalised in the proper manner. For example, the right to electricity, water and, or sewage disposal etc. are ‘rights’ that may be agreed and contracted between neighbours. For example, if you need to dig through a neighbour’s land so that you can access the water mains, you can agree how much you should pay for the ‘right’. However, in order to avoid unseemly complications arising, you are best advised to have your lawyer consider the issue, draft the agreement in appropriate and acceptable terms and have the papers signed by all parties before a notary. If properly formalised, your neighbour will not be able to cut your water supply off as and when he wishes, without fear of legal recourse.

Another example of an easement is the prohibition of abusing or encroaching on a neighbour’s right to light, views and, or privacy. For example, one cannot have a window directly facing immediately onto a neighbouring property or have party walls less than 1.80 metres high. However, if the offending window or culpable wall has been there for twenty years or more, the ‘right’ falls away. As all of you know and as some may have experienced, given that a lot of Spanish property is old and built somewhat cheek by jowl, these ‘rights’ can give rise to bad blood between neighbours when people launch into building work without bearing the law in mind (or having applied for the relevant building licence from the Town Hall!).

Myles Jackson is a bi-lingual, English lawyer who works for the Spanish law firm, Recursos y Gestión Quatro SL. Call Myles on 958 958 077 or write to him at mylesjackson@granadalaw.com.