Easement: VON POLL IMMOBILIEN - the podcast

In encyclopedia episode 3 of the VON POLL IMMOBILIEN Podcasts, Tim Wistokat, attorney and head of the legal department at VON POLL IMMOBILIEN, and host Petra Konradi conduct an exciting interview on the major topic of easements.

What is behind an easement? And why should prospective buyers inform themselves about it in the land register exactly? You can listen to the exciting conversation about these and other topics here now directly or read through as a transcript in 'traditional manner'. We hope you enjoy it!

Podcast episode 'Easement' - full transcript

Moderator Petra Konradi:

Welcome to what is now the third episode of our podcast.The view into the land register is, so to speak, the view behind the scenes of a property. It is not only interesting, but absolutely necessary before a purchase. Because entries in the land register and possibly existing easements you do not see your selected property at first glance. But what is behind the term easement? What are the consequences of such agreements for a potential new owner? And how do you exercise easement as an owner yourself?

To clarify these points, we meet Tim Wistokat. He is a lawyer and head of the legal department at VON POLL IMMOBILIEN. My name is Petra Konradi, I am the host of the podcast. Welcome

Tim Wistokat, lawyer and head of the legal department at VON POLL IMMOBILIEN:

Hello, Ms. Konradi.

Petra Konradi:

As a property owner, you grant another owner certain rights on your property. These so-called easements are legally binding, as the right is tied to the respective property according to Section 96 of the German Civil Code (BGB). So it's more than just an agreement between neighbors.

Mr. Wistokat, what's behind the term 'easement'

Tim Wistokat:

Well, easements are certain rights, such as a right of way or a right of way. Another possibility is that a landowner is prevented from performing certain actions or must waive certain rights.

For example, a restriction could be in the development of a property in which the landowner may not erect buildings that exceed a certain height. Also possible is a line right, whereby power and water lines are laid across the neighboring property.

Petra Konradi:

What should be considered when exercising an easement?

Tim Wistokat:

Well, an easement should first be notarized and entered in the land register of the encumbered property. In this way, the establishment of the easement is firmly anchored and later discrepancies can be avoided. In addition, the entry in the land register secures the owners, since the right now also applies to future buyers and owners of the property.

The situation is different, however, for contracts under private law that are not entered in the land register. Since then this agreement acquires no validity for future owners of the property.

Petra Konradi:

Can you explain the easement with an example?

Tim Wistokat:

In practice, the right of way is one of the most frequently established easements. In this case, the owner of the property located in the rear is usually allowed to walk or drive over a property located in the front. However, despite the right granted, the owner of the serving property does not have to tolerate every behavior of the neighbor. According to Section 1020 of the Civil Code, the interest of the owner of the encumbered property must be protected when exercising the easement.

Petra Konradi:

This means?

Tim Wistokat:

This means that the neighbor, when exercising the right granted to him, has to take into account the interests of the landowner to such an extent that they are not violated.

Furthermore, the owner of the dominant property may be co-obligated for maintenance and repair according to Section 1021 of the Civil Code, provided that he uses the neighbor's facility to exercise the easement. Likewise, it is possible that the parties agree on compensation in the form of compensation for use.

Petra Konradi:

In what way does the easement differ from the non-inheritable right to use another's property?

Tim Wistokat:

In contrast to the usufructuary right, the easement only refers to a certain use of the property or certain actions and rights are excluded by the easement. In the case of the usufructuary right, the entitled person receives a right to use a thing and may additionally draw the fruits from it, for example, rent. Accordingly, with usufruct, the entitled person has much more extensive rights than with an easement.

The usufruct right is often granted in the form of a lifelong housing right and the entitled person is allowed to occupy the property, but also to rent it out and even draw the profit from it.

Petra Konradi:

Ground easements can vary. To be informed about all eventualities, prospective buyers should take a look at the land register of the property in advance. There they can find out both the content and the scope of an existing easement. It is also important to find out whether a usage fee has already been agreed and how high the payment is.

If you have any questions on this or other topics, please feel free to contact our experts or find even more info on our website and in the VON POLL IMMOBILIEN - App. You can find the links in the show notes of our podcast.

VON POLL IMMOBILIEN - the podcast: you can find us on Spotify, Apple Podcast, Google Podcast or in the VON POLL IMMOBILIEN app and on Amazon Music or via Alexa. Just tell Alexa, play the VON POLL IMMOBILIEN podcast.