A right of way across the neighbouring plot, a tolerated water pipe, an encroachment that has existed for decades: such rights and burdens sit in section II of the land register (Abteilung II) and can noticeably affect the value and use of a property. As a Düsseldorf brokerage with more than 60 years of experience, we look closely at the entries for every property. This guide explains what easements (Grunddienstbarkeiten) are, how they differ from other encumbrances and what you should watch out for as a buyer or owner. This is general information and not legal advice.
What is an easement?
An easement (Grunddienstbarkeit) is a right in rem with which one plot of land is encumbered in favour of the respective owner of another plot. It is governed by §§ 1018 to 1029 BGB. Under § 1018 BGB, a plot may be encumbered in such a way that the beneficiary is allowed to use it in individual respects, that certain acts must not be carried out there, or that the exercise of a particular right is excluded.
There are always two plots facing one another. The dominant plot (herrschendes Grundstück) is the one benefited, the servient plot (dienendes Grundstück) is the one encumbered. Importantly, the right attaches to the plot, not to a person. If the owner of the dominant plot changes, the easement passes to the new owner. The new owner of the servient plot must likewise continue to tolerate the burden.
For an easement to take effect in rem, § 873 BGB requires the agreement of the parties involved and registration in the land register. Without registration there is at most a contractual arrangement under the law of obligations, but no effect against later owners or third parties.
Registration in section II of the land register
Easements are registered in section II of the land register (Abteilung II), specifically on the land register sheet of the encumbered, that is the servient, plot. Section II is the section for burdens and restrictions. Alongside easements, it also contains restricted personal easements, charges on land (Reallasten), usufruct rights or rights of pre-emption.
The entry itself is often short, for example a catchword such as a right of way (Wegerecht) or pipeline right. The precise content and the spatial scope frequently emerge only from the registration authorisation (Eintragungsbewilligung), to which the land register entry may refer under § 874 BGB. This authorisation is held in the land records and is part of a complete picture.
This is to be distinguished from section III, which contains land charges such as mortgages and Grundschulden. The order of the entries, that is the priority, can play a role where several rights meet.
Typical types: right of way, pipeline right and encroachment
The law deliberately leaves the content of an easement open. In practice, however, typical forms have developed:
- Right of way and access (Wegerecht): The beneficiary may enter and drive across the servient plot, for example to reach their plot located further back. This is the classic case where a plot has no direct access of its own to the road.
- Pipeline and supply right: The owner of the servient plot tolerates pipes and lines for electricity, water, gas, sewage or telecommunications running across the plot and grants access for maintenance and repair.
- Encroachment (Überbau): It is tolerated that part of a building, a balcony, a roof overhang or a foundation projects beyond the plot boundary.
- Boundary building and setback areas: It may be agreed that construction takes place closer to the boundary or that a certain development is tolerated.
- Restrictive easement: Certain uses must be refrained from on the servient plot, for example a competing business or a disturbing development.
Which form applies and how far the right reaches emerges from the specific entry and the underlying authorisation.
Difference from restricted personal easements and charges on land
Section II often contains similar-sounding rights that must be clearly separated in legal terms:
- Easement (§§ 1018 ff. BGB): benefits the respective owner of another plot. The right is tied to the dominant plot and passes on when it is sold.
- Restricted personal easement (§ 1090 BGB): benefits a particular person, not a plot. By law it is not transferable and as a rule ends at the latest on the death of the beneficiary. The most important case in practice is the right of residence under § 1093 BGB, which grants the right to use a building or part of a building as a dwelling to the exclusion of the owner.
- Charge on land (§ 1105 BGB): obliges the provision of recurring services from the plot, for example monetary or care services. Unlike an easement, this is about an active doing, not a tolerating or refraining.
The decisive difference: the easement attaches to a plot, the restricted personal easement to a person, and the charge on land requires a recurring service.
How easements affect value and use
Whether an easement tends to burden or to benefit depends on which side your property is on.
For the servient, that is the encumbered plot, it means a restriction. The owner has to tolerate a use or to refrain from something themselves. This can affect buildability, freedom of design and privacy, for example where a path leads across one's own plot or pipes run beneath it. Financing banks, too, take burdens from section II into account in their valuation.
For the dominant, that is the benefited plot, by contrast, the easement is often valuable. A permanently secured right of way is what first makes a rear plot accessible, a secured pipeline right ensures supply. Such secured rights can increase usability.
How strongly an entry affects the value in a particular case is a question of the specific property, the location and the intensity of the burden. Blanket statements are out of place. We classify the entries for a property together with you in the sales or purchase process.
What buyers should check in the land register
Before purchasing, a close look at section II is worthwhile. It makes sense to pay attention to the following points:
- Which rights are registered? Rights of way, pipeline rights, encroachment, obligations to refrain or a right of residence can considerably influence use and lettability.
- Who is the beneficiary and how far does the right reach? The precise content is often only set out in the registration authorisation in the land records. Location and scope, for example the course of a path, should be verifiable from the deed and the plans.
- Is the property on the servient or the dominant side? This determines whether there is a burden or an advantage.
- Priority and interplay: How do the rights in section II relate to the land charges in section III?
- Currency: A current land register extract ensures that you see the present status.
In the purchase process we examine the land register and encumbrances carefully and raise open points at an early stage. Detailed legal questions are best clarified with a notary or lawyer.
Deletion and amendment of easements
An easement does not disappear by itself merely because it is no longer used. For its cancellation, § 875 BGB requires the beneficiary's declaration that the right is being given up, together with deletion in the land register. In practice the beneficiary issues a deletion authorisation (Löschungsbewilligung), which under the requirements of the Land Register Code (Grundbuchordnung, GBO) must be publicly certified. The right is extinguished only with the registration of the deletion.
An amendment of the content, for example the course of a right of way, likewise takes place through the agreement of the parties involved and the corresponding entry in the land register under § 873 BGB.
In special cases an easement may be extinguished under § 1028 BGB where an installation impairing the easement exists on the encumbered plot and the claim for its removal is time-barred. Even then a deletion in the land register is usually sought in practice in order to create clarity. The notary and the land registry are responsible for the implementation.
