The concept of easement, also called declaration or declaration of easement, "the concept of easement", is familiar from the field of property law. The concept of an easement is not defined in any law, but according to legal literature and case law, it is understood as a limited right over real estate belonging to another. Easements and declarations can be both private and public law.

Easements are traditionally divided into "easements of disposal", which authorize/grant the right to a certain limited use of a real property, and "easements of condition", which authorize/grant the right to require a certain condition to be maintained on a real property.

Easements are e.g. road or traffic rights, rights of way, rights of way, rights to extract raw materials, etc.

Conditional easements are e.g. villa easements and other area easements imposed in connection with subdivision. They include requirements for plot sizes, planting, choice of materials, appearance, etc. but may also include provisions on the use of the property, including prohibitions on certain types of use or certain types of businesses.

Easement provisions may be contained in deeds, articles of association, etc. without the term easement being used, just as documents designated as easements may contain provisions that fall outside the concept of easements. Ultimately, it is the nature and content of the individual provisions in a document that determines whether it is an easement.

"Other types of rights", where the owner's legal or economic use of a real property is otherwise restricted, fall outside the concept of "easements" and include what we know as traditional "rights of use" in the form of rental and lease agreements, but also other types of rights such as, for example, buyer's rights, purchase rights, repurchase rights, sales and pledge prohibitions or general rental prohibitions.For example, purchase rights, rights of first refusal, repurchase rights, sales and pledge prohibitions, general rental prohibitions or customary terms in a rental agreement stating that the tenant may only use the rented premises for a specific purpose/type of business and not others. Such rights do not have the character of limited rights over a real estate (easement), but relate to the more common/general utilization of the entire property or parts thereof.

The demarcation between easements and other types of rights (collectively referred to as "property burdens") plays a crucial role in various legal contexts. For example, all property burdens must be registered as easements, while real easement terms, which can be included in a local plan, must also be approved by the municipality before registration. In addition, it is important to note that property encumbrances are the responsibility of the owner of the obligated property at any given time.

When transferring any type of real estate, there will almost without exception be registered easements on the property, which it will be relevant to investigate the significance of for the seller and buyer. Often during the ownership period, it will also be relevant for a property owner or its user to get assistance in understanding the scope of already registered property burdens or to have new rights over the property secured by registration.

At CLEMENS, we advise a significant number of private and public companies, including private investors, investment companies, real estate funds, public housing organizations, project developers, associations, etc. but also private property owners, on property law matters in a broad sense, including in particular on property burdens and their specific impact on a property's sales, use and development opportunities. Through this, we have accumulated considerable experience and knowledge of how various property burdens should be understood, interpreted and handled in practice, which creates value for our clients.

We can advise on and help with, among other things:

  • Obtaining, reviewing and assessing the significance of specific property burdens, including as part of legal due diligence. Examples include easements and declarations regarding reversion, limitations on the assessment of construction, right of first refusal, right of purchase, option agreements, traffic, hunting, etc.
  • Clarify the legal position between dominant and servient property. The dominant property is the property whose owner is materially entitled according to the easement, i.e. the one who can dispose of the obligated/servient property.
  • Assessment of easement termination and/or compatibility with applicable local plans.
  • Preparation of easements, including obtaining registration outlines or drawings, etc. from a surveyor and dialog with any claimants. This may concern, for example, co-ownership, wiring, traffic, bylaws, sales and mortgage prohibitions, mercantile purchase sums, villa easements, inconvenience easements, public law rights and claims, including exemption from taking out building damage insurance for new buildings and conversions, registration of building law boundaries, etc.
  • Obtaining consent for registration in accordance with section 42 of the Planning Act.
  • Registration of easements.
  • Representation of property owners, rights holders, prosecutors and others in connection with the resolution of disputes regarding the prosecution and enforcement of easements, including in appeals and litigation.

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