Dutch Civil Code

Book 5 Real property rights

Title 5.6 Easement

Article 5:70 Definition of an ‘easement’ and ‘ground fee’
- 1. An easement is a burden with which an immovable thing, the ‘servient land’, is encumbered on behalf of another immovable thing, the ‘dominant land’.
- 2. The notarial deed by which an easement is established, may impose an obligation upon the owner of the dominant land to pay a sum of money - the ‘ground fee’ - at regular or irregular intervals to the owner of the servient land.

Article 5:71 Content of the burden on the servient land
- 1. The burden that an easement imposes upon the servient land, consists of the duty to tolerate an object or activity on, above or under the servient or dominant land or to refrain (leave off) from putting an object or performing an activity on, above or under one of these lands. The notarial deed by which the easement is established may determine, in addition, that the burden includes the duty to set up buildings or constructions or to grow plants (vegetation), necessary for exercising the rights derived from the easement, provided that these buildings, constructions and plants (vegetation) are entirely or partially situated on the servient land.
- 2. The burden which an easement imposes upon the servient land may also consist of the duty to perform maintenance services with regard to the servient land or to buildings, constructions or plants that are entirely or partially situated on the servient land.

Article 5:72 Formation of easements
Easements can come to existence by means of an establishment or the prescription of a right of action.

Article 5:73 Content of an easement
- 1. The content of an easement and the way how its rights are to be exercised are specified in the notarial deed by which the easement is established and, as far as this deed does not provide a regulation, by local common practice. When the rights derived from an easement have been exercised in good faith for a considerable time in a certain way without any objection of the owner of the servient land, then this way of exercising these rights is decisive as far as there is realistic doubt with regard to the content of the easement or the way in which it is to be exercised.
- 2. Nevertheless the owner of the servient land may point out another part of his land where the rights derived from the easement have to be exercised than the part that is allocated for this purpose pursuant to the previous paragraph, provided that this relocation is possible without diminishing the enjoyment that the owner of the dominant land derives from the easement. Costs, necessary for such a relocation, are for account of the owner of the servient land.

Article 5:74 Exercising the rights based on an easement
The rights derived from an easement must be exercised in a way that is least aggravating for the owner of the servient land.

Article 5:75 Rights and duties
- 1. Provided that the owner of the dominant land pays all the costs involved, he is entitled to do on the servient land all that is necessary for exercising the rights he has derived from the easement.
- 2. Provided that he pays all the costs involved, he is also entitled to set up buildings, constructions or plants (vegetation) on the servient land that are necessary for exercising the rights he has derived from the easement.
- 3. He is compelled to maintain what he has set up on the servient land as far as this is necessary in the interest of the servient land; he has the right to remove from the servient land what he has placed there, provided that he restores the servient land to its original conditions.
- 4. The owner of the servient land has no right to use the buildings, constructions or plants (vegetation) that have been placed rightfully on his land by the owner of the dominant land.
- 5. The arrangements in the notarial deed by which the easement has been established, may derogate from the previous paragraphs.
- 6. Where common ownership (in the meaning of Title 5.5 of the Civil Code) has arisen with regard to the buildings, constructions or plants (vegetation) that are placed on the servient land, paragraphs 3 and 4 of the present Article are set aside by the applying provisions for common ownership of Title 5.5 of the Civil Code.

Article 5:76 Partitioning of the dominant or servient land
- 1. When the dominant land is split up in two or more separate land plots, the easement continues to exist with regard to every individual land plot that still might be served by it.
- 2. When the servient land is split up in two or more separate land plots, the burden continues to be encumbered upon every individual land plot with regard to which it is still possible to exercise the rights derived from the easement as intended in the notarial deed by which the easement was established and as can be achieved in view of the nature of the easement.
- 3. The arrangements in the notarial deed by which the easement has been established, may derogate from the previous paragraphs.

Article 5:77 Joint and several liability for financial obligations
- 1. When the dominant or servient land belongs to two or more persons, either as co-owners or as individual owners of several land plots after a partitioning of the original land, then they are joint and several liable for financial obligations arising from the easement which become due and demandable during the time they have a right of ownership or a share in such a right to one of the lands, as far as these obligations were not split up and spread over their rights.
- 2. After a transfer or apportionment of the dominant or servient land or of a part of or share in it, the acquiring party and his predecessor are joint and several liable for the financial obligations referred to in paragraph 1 which have become due and demandable in the preceding two years.
- 3. The arrangements in the notarial deed by which the easement has been established, may derogate from the previous paragraphs, yet not from the second paragraph insofar this would be to the disadvantage of the acquiring party.

Article 5:78 Alteration or termination of an easements
The court may, upon the request of the owner of the servient land, change or lift (end) the easement:
a. on the basis of unforeseen circumstances which are of such a nature that to standards of reasonableness and fairness an unchanged continuation of the easement cannot be expected from the owner of the servient land;
b. if at least twenty years have expired since the easement first came to existence and an unchanged continuation would be contrary to public interests.

Article 5:79 Termination of an easement by the court
The court may, upon the request of the owner of the servient land, terminate an existing easement if it has become impossible to exercise the rights derived from it or if the owner of the dominant land has no longer a reasonable interest in exercising these rights, in both cases provided that it is plausible that in future this will not become different.

Article 5:80 Change of the content of the easement
When, due to unforeseen circumstances, it has become permanently or temporarily impossible to exercise the rights derived from an easement or when the interest of the owner of the dominant land has been diminished considerably, then the court may, upon the request of the owner of the dominant land, change the content of the easement in such a way that it will be possible again to exercise these rights or that the original interest is restored, provided that this change can be imposed upon the owner of the servient land to standards of reasonableness and fairness.

Article 5:81 Further conditions and the interests of other limited proprietors
- 1. The court may award a legal claim as meant in Articles 5:78 up to and including 5:80 under additional conditions to be determined by it.
- 2. When the dominant or servient land is encumbered with a limited property right, then a claim as meant in Articles 5:78-5:80 can only be awarded if the proprietor of this limited property right is called to the legal proceedings. In determining whether the criteria of Article 5:78 under point (a), 5:79 and 5:80 are met, also the interests of this limited proprietor have to be taken into account.

Article 5:82 Abandoning the easement
- 1. If the owner of the dominant land wants to abandon the easement at his expense in order to get relieved from the duties and obligations attached to it, then the owner of the servient land is compelled to cooperate in this.
- 2. The notarial deed by which the easement has been established, may provide for a different arrangement than the one stipulated in the previous paragraph, yet only for the first twenty years.

Article 5:83 Merger of the right of ownership of the servient and dominant land
If, at the moment on which the dominant and servient land have become the property of one and the same owner, one of these lands is leased out or used on the basis of a debt-claim (personal right) by a third party, then the easement only ceases to exist on account of a merger of the involved rights of ownership at the moment on which this lease or right of use has ended.

Article 5:84 Establishment of easements by limited proprietors (leaseholder, superficiary, usufructuary)
- 1. When an immovable thing is encumbered with a long leasehold, a right of superficies or a usufruct, the proprietor of that limited property right (leaseholder, superficiary, usufructuary) may agree with the owner of another immovable thing that an easement will be established on this other person's immovable thing on behalf of the immovable thing that is encumbered with the long leasehold, right of superficies or usufruct. Such a limited proprietor (leaseholder, superficiary, usufructuary) may also agree with the owner of that other immovable thing that an easement is established on the immovable thing that is encumbered with the long leasehold, right of superficies or usufruct on behalf of that other immovable thing.
- 2. When the proprietor of a limited property right (leaseholder, superficiary, usufructuary) has stipulated an easement on someone else's immovable thing on behalf of the immovable thing that is encumbered with his limited property right, then this easement shall not cease to exist at the end of his limited property right, unless this has been agreed upon in the notarial deed by which the easement was established. The same applies to an easement on someone else's immovable thing that has been stipulated by the proprietor of a right of superficies (superficiary), not on behalf of the immovable thing that is encumbered with his limited property right, but on behalf of that right of superficies itself. When the easement continues to exist after the limited property right of the proprietor (leaseholder, superficiary, usufructuary) has ended, a provision as meant in Article 5:82, paragraph 2, can no longer prevent that the easement is abandoned.
- 3. An easement established by the proprietor of a limited property right (leaseholder, superficiary, usufructuary) on the immovable thing that is encumbered with his limited property right, ceases to exist at the end of that limited property right, unless it ceases to exist because of a merger of the ownership of the dominant and servient land or unless the owner of the immovable thing that was encumbered with the meanwhile ended limited property right had already declared in a notarial deed, registered at the public registers for registered property, that he agrees with the establishment of this easement on his immovable thing. The same applies to an easement established by the proprietor of a right of superficies (superficiary) on this limited property right.
- 4. For the purpose of this Title a leaseholder, a proprietor of a right of superficies (superficiary) and a usufructuary are regarded as owner of either the dominant land or the servient land, depending on the situation.