A Practical Guide for Property Owners on Establishing a Servitude

A road crossing a neighbouring property, a water pipeline running through another's land, or the right to use an adjacent plot's car park may seem self-evident — until the property changes hands or a dispute arises. An oral agreement provides insufficient certainty in such a situation. A practical guide to establishing a servitude helps clarify when a right needs to be formalised, what terms must be agreed upon, and how to avoid costly disputes later on.

A servitude is not merely a matter of neighbourly courtesy. It is a right attached to immovable property that enables one person or property owner to use another person's immovable property for a specific purpose. A well-drafted agreement protects both parties: the beneficiary knows that the necessary access or use of a utility network will be preserved, while the owner of the encumbered property knows exactly what is permitted, where, and under what conditions.

When is it necessary to establish a servitude?

The most common reason is an access road. For example, a property may have no direct connection to a publicly accessible road, requiring passage over a neighbour's land. Servitudes may also be required for water, sewerage, communications, electricity, or gas pipelines that are situated partly on another person's property.

In practice, the issue also arises when an old road or pipeline has been in use for years without any entry in the land register. A history of good relations is no substitute for a formally established right. A new owner is generally not bound by a previous oral agreement and may demand that use of the road cease or that the utility infrastructure be relocated.

A servitude may also be necessary prior to development, construction, or the sale of a property. Buyers, banks, and future users often wish to see that access and the location of utilities are legally clear. An unresolved situation can slow down a transaction, reduce the value of the property, or give rise to additional costs.

Types of servitude and their practical significance

In the context of immovable property, a real servitude is commonly encountered. This means that a right to use one immovable property is established for the benefit of the owner of another immovable property from time to time. For example, the owner of a plot may obtain the right to drive across a neighbouring property to reach a public road. The right is not tied solely to the current owner but generally remains in force even after the property is sold.

In certain situations, a personal right of use or another right connected to a specific person is established. This is used, for example, when a particular entrepreneur or network operator needs to be granted the ability to construct, maintain, and repair a utility network. The choice of the appropriate legal solution depends on whose interests the right is created to serve and whether it must pass with the property in the future.

The label alone resolves nothing. What matters is the substance of the agreement. In the case of an access right, the location of the road, its width, the manner of use, and whether pedestrian traffic, passenger vehicles, heavy goods vehicles, or, for example, construction equipment are permitted must all be clearly defined. In the case of a utility network, the location of the pipeline, the access required for maintenance, and any restrictions on construction within the servitude area must be set out.

A practical guide to establishing a servitude: start with the facts

Before entering into negotiations with a neighbour, it is worth gathering the relevant documents and establishing the actual situation. Review the land register data, the cadastral map, existing project documentation, and, where necessary, survey data. Check whether the property already has any servitude, personal right of use, mortgage, or other entry that may affect the solution.

The next step is to think through what use is actually required. Overly general wording — for example, "the right to use the road" — leaves considerable room for interpretation later on. At the same time, an excessively broad right may encumber the neighbouring property more than is necessary to achieve the intended purpose. A sensible solution is one that is as specific as possible while remaining workable in the future.

In the case of access, it is worth addressing the following questions: where the road runs, how wide it is, who constructs it, who clears the snow, who repairs potholes, and whether guests, tenants, and service providers may also use the road. In the case of a pipeline, the parties must agree on how emergency works are to be carried out, how much advance notice is required for routine maintenance, and who restores the landscaping or surface finish after excavation works.

Where a servitude affects multiple owners, it must be established who is authorised to enter into the agreement. Questions relating to co-ownership, estate property, company assets, or authority to represent may turn a seemingly straightforward agreement into a complex matter. It is advisable to resolve these issues before the notarial appointment.

A right granted free of charge, for a fee, or with shared costs?

A servitude may be granted in exchange for a one-off payment, a periodic fee, or on a gratuitous basis. There is no single universal price. The consideration depends, among other things, on the extent of land use, the value of the property, the impact of the road or pipeline, and whether the encumbered owner will experience a lasting inconvenience or restriction.

A gratuitous servitude may be justified, for example, where both properties were previously under common ownership or where use of the road places very little burden on the neighbour. On the other hand, a gratuitous agreement should not be taken to mean that all future road and maintenance costs automatically fall on the owner of the encumbered property. The allocation of costs must be set out separately and in clear terms.

A common source of dispute is road maintenance. Where one property uses the road infrequently and another uses it daily with heavy machinery, an equal sharing of costs may not be equitable. Sometimes an allocation based on intensity of use is appropriate; sometimes a fixed percentage is more suitable. What matters is that the agreement reflects actual use, not merely the goodwill of the parties at the time of signing.

The agreement, the notary, and the land register

Establishing a servitude generally cannot be achieved by a written agreement between the parties alone. In order to create a right encumbering immovable property, a notarised real rights agreement must be concluded and the right must be entered in the land register. The entry gives the right visibility and protection against future owners as well.

The notarised agreement typically includes a precise description of the servitude and a plan on which the servitude area is clearly marked. The plan is not a formality. If the route of the road is imprecisely shown on the map or the description allows for more than one interpretation, a question may later arise as to which area of land the right actually covers.

Before signing, the agreement should be read through carefully. Particular attention should be paid to conditions concerning construction within the servitude area, the planting of trees, the installation of gates, parking, traffic management, and the modification or termination of the right. Where the property is subject to a mortgage, it may in certain circumstances be necessary to take into account the interests and consent of the mortgagee.

When agreement cannot be reached

Not all neighbours reach a voluntary solution. Where a property lacks the necessary connection to a publicly accessible road, or where the existing access is insufficient given the circumstances, the owner may have the right to demand access across a neighbouring property. Such a claim does not, however, mean that the owner may choose whichever route is most convenient or least costly.

In finding a solution, consideration is given to which route causes the least damage to the encumbered property, whether alternative options exist, and what compensation is fair. Where necessary, the dispute is resolved by a court. Court proceedings can be time-consuming, require evidence, plans, and expert assessments, and can damage the relationship between neighbours for a long time. For this reason, it is worth attempting to negotiate on the basis of a clear proposal before filing a claim.

In the case of utility networks as well, a refusal by the owner is not always the final answer, but the available options depend on the type of network, the construction and planning circumstances, and the specific legal basis. An ill-considered step here may result in construction works being halted or an obligation to relocate an already-installed pipeline.

What to do before signing?

A good agreement is reached when the parties do not address only the immediate problem. Consider also situations where the property is sold, the road requires major renovation, the pipeline breaks down, or the nature of use changes. If, for example, a property originally intended for a private residence is later put to commercial use or developed into an apartment building, traffic volumes may increase significantly and the original agreement may no longer be suitable.

When preparing documents, a legal adviser can assess whether the chosen servitude achieves its purpose, what risks the agreement contains, and how to draft the terms in a manner that is enforceable. Eurocity Law Office can help review the situation, prepare or examine agreements, and, where necessary, conduct negotiations or provide representation in a dispute.

Where access, a road, or a utility network depends on a neighbouring property, it is worth acting before relations deteriorate or a transaction comes to a standstill. A servitude that is clearly delineated, fairly compensated, and entered in the land register gives both parties peace of mind in the knowledge that the next property owner will not have to resolve the same issue from scratch.