With an easement (erfdienstbaarheid), there are two properties: a servient property (dienend erf) and a dominant property (heersend erf). The servient property must bear the easement and the dominant property can enjoy it. There are various types of easements, each with their own characteristics. This page describes the situation in the Netherlands. The four best known are:
- The right of way (recht van overpad)
- The right of way for vehicles (recht van weg)
- The right to a view (recht van uitzicht)
- The gutter right (gootrecht)
The right of way
The right of way (recht van overpad) is the right of one neighbour to cross a piece of land belonging to another neighbour in order to get to and from their own property. It is an easement that can come into being in various ways. It brings both rights and obligations.
How a right of way comes into being
A right of way can come into being in various ways. First of all, a right of way can be created by agreement. The two neighbours then make an agreement about this right of way and have a civil-law notary (notaris) record that agreement. After it has been entered in the public registers, the right of way has been established. This right is then attached to the properties, which means it also continues to exist when the properties get new owners. All kinds of agreements can be made about such an agreed right of way. For example, the neighbours can determine that it only continues to exist for ten years, or a fee can be charged.
Another way in which a right of way can come into being is through prescription. In this case, the piece of land must have been used for 20 years for the same purpose, just as if there really were a right of way. When the land has been used in good faith, for example because everyone thought there was a right of way and this later turns out not to be the case, the prescription period is 10 years. When the right of way has been acquired through prescription, this can also be entered in the public registers.
Bear in mind, however, that the burden of assertion (stelplicht) and the burden of proof lie with the person who says they have acquired the right of way through prescription. In practice, this is often difficult. This is also shown by a ruling of the Court of Appeal of Arnhem-Leeuwarden (ECLI:NL:GHARL:2018:3053). In this case, someone claimed to have acquired a right of way because he had been parking his bicycles there all that time. According to the court, it could not be inferred from this that he claimed to be entitled to a right of way.
Rights and obligations with a right of way
When a right of way has been established on a property, the owner of this property must respect this right. So they may not simply make access impossible by putting up a fence or obstructing access in other ways. If it were desirable to install a gate, for example to keep uninvited guests away, the person entitled must also be given a key.
The user of the right of way can, however, be required to maintain the facilities that have been put in place. For example, they will have to remove weeds or repair a loose paving slab. They must do this at their own expense. If the user does not do this, the owner may do it and charge a fee for it. Furthermore, the user is obliged to use the right of way in such a way that it causes as little nuisance as possible.
Also always look at the deed drawn up by the civil-law notary. This may contain different agreements about the costs, the maintenance and so on. It may also state that the right of way may only be used on foot and not, for example, by bicycle. These rules must also be complied with.
End of the right of way
In principle, the right of way continues to exist unless the parties agree to cancel it. For example, the owner of the servient property can propose buying off the easement. On the other hand, the owner of the dominant property can also voluntarily give it up.
In addition, it is also possible to ask the court to change or cancel the right of way. The court can do this on the basis of new unforeseen circumstances or if the right of way no longer serves any interest. The latter will be the case, for example, if there is now a better way to reach your own property, for instance because a new street has been built. The court can also cancel an easement when it conflicts with the public interest.
Finally, the right of way ends through merger (vermenging). This means that the owner of the servient property also becomes the owner of the dominant property, or vice versa. The right of way then loses its purpose and is lost.
The right of way for vehicles
With the right of way for vehicles (recht van weg), people may use a private road, for example with a motor vehicle. It comes into being in similar ways to the right of way, and it also ends in similar ways. The right of way for vehicles can be very diverse, and a lot depends on the agreements made. In practice, we can therefore make a further subdivision.
Right of reed
In Frisian, a reed is a cart track, a cognate of the English "road". In other words, it is simply a right of way for vehicles like any other, but because of the Frisian context ("rjocht fan reed") the name is mostly used for a right of way for vehicles in an agricultural context.
Right to drive livestock
With this right (recht van veeleiding), the user has the right to drive their livestock along a road on the servient property. On the basis of the right to drive livestock, they can, for example, take their livestock from the barn to the pasture and back.
Right of neighbourhood road
With a right of neighbourhood road (recht van buurweg), the person entitled has the right to use a certain route. The right of neighbourhood road stems from the former Article 719 of the Dutch Civil Code (Burgerlijk Wetboek). On the basis of this article and case law, it was assumed that a neighbourhood road could come into being through the subjective purpose given to it by the various persons entitled. With the reform of the Dutch Civil Code, the right of neighbourhood road lapsed as of 1 January 1992. Although they can no longer come into being, an existing right of neighbourhood road must still be respected.
Emergency right of way
The emergency right of way (recht van noodweg) is sometimes also called the right of exit (recht van uitweg). It is a right that an owner has when they do not have a proper exit. Such a proper exit can be over land or over water. In any case, their plot must therefore be completely enclosed. At the request of the owner of the dominant property, the owner of the servient property must grant them access. Such an emergency right of way continues to exist for as long as it is necessary. For the route, in turn, the fastest way that causes the least nuisance is considered.
The right to a view
It is rather an oversimplification, because successful damages claims have certainly been submitted for it, but in principle people have no right to a view. Anyone who buys a flat with a view of the sea therefore runs the risk that another block of flats will be raised and this view will be lost. It is the same with neighbours: the neighbour can let his weeping willow grow very large, spoiling a fantastic view. In some cases, action can be taken against this, and a property developer may have to pay compensation to the person who loses the view, as there is planning damage (planschade) because someone paid an above-average amount for a view that will now be lost, but the developer will not care: the new residents will of course pay extra in turn and so cover the damage of the person who is inconvenienced.
Either way, such a view can therefore be lost. One solution is to agree a right to a view and have it recorded by the civil-law notary. In such a case, the owner of the servient property may not simply do something that could spoil the view. For example, they may be obliged not to let their hedge grow higher than an agreed height, or they may be prohibited from adding a high veranda.
The gutter right
In principle, owners of a property may only let the water they collect run off onto their own land. So a gutter may not discharge onto the neighbours' property. Through the gutter right (gootrecht), this is nevertheless permitted. The mutual agreements take precedence, but in principle it is assumed that the gutter right concerns the right to let dirty water run off onto the servient property. When it concerns the right to let clean, overflowing water from the roof run off onto the neighbours' property, this is mostly referred to as the right of drainage and drip (recht van waterloop en drop).
Also read: Neighbours and problems with the garden, Nuisance from mess and clutter next door and Renovations and problems with the neighbours.
Step-by-step plan for disputes about easements
It happens quite often that easements lead to disputes. For many people, it does not feel right that someone else has certain rights over their property. This is all the more the case if neighbours do not get on. Always try to find a solution together first, and do not bring out the heavy legal artillery straight away.
- Check whether the easement exists
Always first check whether there actually is an easement and what the applicable rules are. An easement can be checked by requesting information from the Netherlands Cadastre, Land Registry and Mapping Agency (Kadaster). In principle, the applicable rules can be found in the deed.
- Discuss it with the neighbours
The deed will make clear what the rights and obligations of the two owners are. Go through it together with the neighbours and make sure everything is clear to everyone. If necessary, ask for legal advice. Often neighbours simply want everything to be done correctly, and clarity will be enough.
- Opt for mediation
If the dispute continues, it can be worthwhile to call in an independent conciliator or mediator. However, this is only possible if everyone is willing to cooperate. A conciliator will not settle the dispute, but simply helps the neighbours find a suitable solution.
- Go to court
If the dispute continues, the neighbours can bring it before the court. The court will then decide and will give a ruling on the easement. It can change certain agreements, annul the easement or force the owner of the servient property to fulfil their obligations.
Frequently asked questions
My neighbours say they have a right of way over my property. How can I find out whether this is true?
If there really is a right of way, it should be entered in the public registers. This information can be requested from the Kadaster. If it concerns a new home, it should be stated in the deed of transfer. If necessary, check with the civil-law notary.
I have a right of way, but my neighbour refuses to give me access. What can I do?
Always start by talking to the neighbours or call in (community) mediation. If that does not work, the matter can be brought before the court. The court can then oblige the neighbour to give access after all. If necessary, the court will impose a penalty payment (dwangsom) to enforce this.
I have a right of way. Does it pass to my tenant?
Yes, the right of way is not attached to a person but to the property. The tenant can also use the right of way. The obligations of course remain. For example, the tenant must exercise this right in such a way that it is least burdensome for the neighbours. However, the tenant cannot acquire a right of way through prescription.
My neighbours say the property boundary runs somewhere else. How can I find out?
The cadastral map (Kadastrale kaart) only shows the approximate location of a plot: it does not show exact boundaries or measurements (source: Kadaster). The details of the boundary can, however, be found in the Kadaster's archives. If there are disputes about this, you can have the Kadaster carry out a boundary reconstruction (grensreconstructie): a land surveyor looks up the details of the boundary and makes its location visible on the ground. A dividing wall can then be built there.
A right of way can be cancelled if there is no longer any reasonable interest. What is a reasonable interest?
Determining whether or not there is a reasonable interest depends very much on the individual case. This means that it depends on the specific situation. In practice, there are a number of examples that show what should be understood by a reasonable interest. Think, for example, of a situation where there are no reasonable alternatives, where these alternatives are unreasonably longer, or where the other alternatives, unlike the easement, are unpaved or unsafe, and so on. In any case, there are only a few examples in case law where the right of way was cancelled. This shows that there is quickly a reasonable interest.
Can the existence of an easement affect the WOZ value?
Yes, this is possible and has also been confirmed by the court of appeal. Ultimately this is logical: the owner of the servient property has less enjoyment of the property, and so this will have a negative effect on the WOZ value (the municipal valuation of a property under the Valuation of Immovable Property Act, Wet waardering onroerende zaken).