The Issue of Statutory (Legal) Easements

Adrián Fedor

Senior Associate

The purpose of this article is to present an analysis of the fundamental starting postulates of the legal regulation of statutory (legal) easements (hereinafter referred to as "SLEs") in a very concise and simplified conceptual and substantive construction, particularly concerning SLEs regulated by Act No. 351/2011 Coll. on Electronic Communications (hereinafter referred to as the "ECA").

Definition and Essence

„The essence of statutory (legal) easements lies in the fact that they represent a public law restriction on ownership rights, i.e., the delineation of ownership rights content through public law regulations“ [1]. SLEs are sui generis institutions that cannot be attributed the nature of private law measures, as they are restrictions on ownership rights in the public interest and pursuant to public law regulations[2].

In the context of the uniform case law of the Supreme Court of the Slovak Republic, the essential characteristics of SLEs include:

  • they arise directly from the law (by the law coming into effect or based on another legal fact) or by the decision of the relevant authority (upon the finality of the decision), to the necessary extent, in the public interest, and with compensation;

  • this limitation of property rights is an expression of the primacy of the public interest over the interest of the individual, without the need for consent from the affected owner;

  • they can only be established in rem, i.e., they are always tied to the ownership of a specific property;

  • the content of the right corresponding to the easement involves a continuous or repeated activity;

  • their regime is always governed by the regulations in force at the time of their establishment (despite the principle lex posterior derogat legi priori, provisions of earlier laws regulating statutory easements remain applicable through retroactive reference);

  • rights corresponding to SLEs are entered into the real estate cadastre as records, which have declaratory effects and evidentiary significance [4];

  • they cease to exist due to a decision of the relevant authority, by law (when the facts anticipated in the hypothesis of the relevant legal norm are fulfilled), or due to a permanent change in the subject matter of the easement or a change in circumstances.

Legal Regulation

The basic legal framework of SLEs is contained in Sections 128(1) and (2) and Sections 151n to 151p of the Civil Code (hereinafter referred to as the "CC"). This general legal regulation has its normative foundation in Article 20(4) of the Constitution of the Slovak Republic, which stipulates: "Forced restriction of ownership rights is only permissible to the necessary extent and in the public interest, based on law and with appropriate compensation." This fundamental legal framework is complemented by a relatively broad portfolio of specific public law norms governing the SLE regime with an emphasis on the nature and subject matter of the respective SLEs. The relationship between the CC and specific legal norms regulating SLEs is based on the principle of subsidiarity, derived from the Roman maxim lex specialis derogat legi generali, meaning that if special regulations do not govern certain issues at all or only partially, their regime is governed by the general provisions of civil law[5].

In the next section, we will focus our attention on the issue of SLEs according to the ECA.

Entities of SLEs under the ECA

The entities of SLEs under the ECA are the obligor and the beneficiary. The obligor of the easement is always the owner of the burdened property. The beneficiary of the easement is always an undertaking (any entity under Section 5(1) of the ECA that has fulfilled its notification obligations under Section 15 of the ECA to the Regulatory Authority for Electronic Communications and Postal Services).

Content of SLEs under the ECA

The content of SLEs under the ECA is the right of the undertaking, to the necessary extent and in the public interest (Section 66(1) of the ECA):

  • „to establish and operate public networks and construct their lines on another's property,

  • to enter someone else's property in connection with the establishment, operation, repair, and maintenance of conduits,

  • to perform necessary land and vegetation adjustments, including removing and trimming trees and other vegetation threatening the safety and reliability of the lines, if the owner or user of the land has not done so after prior notice.“

Time of Establishment of SLEs under the ECA

The ECA does not specify the exact moment when SLEs under Section 66(1)(a) of the ECA arise. The potential alternatives are:

  • the effective date of the ECA (Section 81 of the ECA);

  • the date of entry of the SLE into the real estate cadastre (Section 66(2) of the ECA);

  • the date of finality of the zoning decision on the location of the public network (Section 39a of the Building Code);

  • the expiry of the 15-day notice period to the obligor of the easement regarding the commencement of the exercise of the right corresponding to the SLE (Section 66(3) of the ECA);

  • the actual establishment of the subject of the SLEs.

Based on the aforementioned options, we conclude that the date of establishment of a servitude under the Copyright Act (ZoEK) can only be regarded as the effective date of the ZoEK itself, as servitudes represent statutory rights of the entity, which may be exercised at any time during the validity of the ZoEK, provided that two cumulative legal conditions are met (the necessary scope of the restriction and the existence of public interest as stipulated in § 66(6) of the ZoEK). Rights arising from servitudes are not subject to prescription, and therefore the party burdened by the servitude cannot raise a statute of limitations defense in proceedings to suspend the exercise of rights corresponding to the servitude, which constitutes a fundamental distinction when compared to contractual servitudes [6].

We exclude the day of registration of the servitude in the land registry due to the (merely) evidentiary nature of the record, which does not affect the creation, modification, or extinction of property rights. The day of the finality of the zoning decision is excluded as well, with reference to applicable case law [7] This is due to the fact that, in the case of this servitude, the following applies in the zoning procedure: prior to the issuance of a decision regarding the siting of the public network conduit, the enterprise must have the right to the servitude over the third-party land on which the conduit is to be constructed, unless it is the landowner or has obtained the landowner's consent.

Compensation for Establishment of SLEs under the ECA

The obligor of the easement is entitled to compensation for::

  • one-time compensation for the restriction of property use under Section 66(4) of the ECA, which is subject to a one-year subjective and three-year objective preclusion period;

  • one-time compensation for the forced restriction of property use under Section 66(5) of the ECA, subject to the same preclusion periods as above.

Termination of SLEs under the ECA

SLEs under the ECA may terminate::

  • by court decision (§ 151p, paragraph 3 of the Civil Code), in the event that the party burdened by the servitude files a lawsuit to annul the servitude, i.e., due to the creation of a gross disproportion between the servitude and the benefit of the entitled party as a result of a change in circumstances. However, neither the Civil Code nor the Copyright Act provide criteria for determining when a gross disproportion exists between the servitude and the benefit of the entitled party, leaving the resolution of this issue to the court's discretion [8]. jurisprudence, however, indicates that a change in circumstances does not include, for example, (i) the mere fact that there has been a change in ownership of the property to which the servitude is attached, even when the new owner finds themselves in a worse situation than at the time of the transfer [9] or (ii) the fact that a gross disproportion between the servitude and the benefit of the entitled party existed even before the change in circumstances[10].

  • by law (§ 151p, paragraph 2 of the Civil Code), in the event of permanent changes that render the property incapable of serving the needs of the entitled party or a more beneficial use of their property. In light of jurisprudence, a permanent change is understood to primarily refer to a change concerning the property to which the servitude is attached, resulting in the objective impossibility for the entitled party to exercise their rights under the servitude, either completely or for the purpose for which it was established [11].

Other Means of Legal Protection

Other means of legal protection against SLEs under the ECA include:

  • filing a negative (prohibitory) lawsuit under § 126, paragraph 1 of the Civil Code (e.g., if the entitled party of the servitude exercises rights corresponding to the servitude to a greater extent than authorized under the servitude, thereby arbitrarily expanding the servitude, the burdened party may defend themselves with a negative lawsuit).

  • filing a declaratory lawsuit under § 137, paragraph 3 of the Civil Procedure Code (e.g., if the party burdened by the servitude believes that the servitude was not validly established or that there is no public interest in the creation of the servitude, they may seek a court determination of the non-existence of the right corresponding to the servitude).

  • filing an administrative lawsuit to review the land registry entry under § 6 of the Administrative Court Procedure Code (e.g., if the request for the registration of the servitude was not suitable for entry) [12].

For more comprehensive information, please contact our law firm.

The reference: https://www.epravo.sk/top/clanky/problematika-zakonnych-legalnych-vecnych-bremien-4624.html

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[1] resolution of the Constitutional Court of the Slovak Republic dated October 17, 2018, file no. II. ÚS 500/2018.
[2] see, for example, the decision of the Supreme Court of the Slovak Republic, file no. R 39/2006.
[3] see, for example, the decisions of the Supreme Court of the Slovak Republic, file no. 4Cdo/89/2008 dated December 21, 2009; file no. 7Cdo/26/2014 dated March 24, 2015; or file no. 3Cdo/49/2014 dated April 14, 2016
[4] see, for example, the decision of the Supreme Court of the Slovak Republic, file no. 8 Sžo 408/2009, or the decision of the Constitutional Court of the Slovak Republic, file no. I. ÚS 62/00.
[5] judgment of the Constitutional Court of the Czech Republic, file no. PL ÚS 25/04 dated January 25, 2005.
[6] see, for example, the judgment of the Supreme Court of the Czech Republic, file no. 22 Cdo 431/2006; R 60/2008.
[7] see, for example, the judgment of the Regional Court in Banská Bystrica, file no. 17Co/119/2018 dated August 15, 2018.
[8] see the judgment of the Supreme Court of the Czech Republic, file no. 22 Cdo 1665/99 dated January 25, 2001.
[9] see the judgment of the Supreme Court of the Czech Republic, file no. 22 Cdo 1624/2002 dated October 1, 2002.
[10] see the judgment of the Supreme Court of the Czech Republic, file no. 22 Cdo 1665/99; similarly, the resolution of the Supreme Court of the Slovak Republic, file no. 4 Cdo 291/2009 dated February 22, 2011.
[11] see the judgment of the Regional Court in České Budějovice, file no. 25 Co 733/2007.
[12] see the resolution of the Supreme Court of the Slovak Republic, file no. 2Sžr/141/2016 dated October 25, 2018; similarly, the resolution of the Supreme Court of the Slovak Republic, file no. 1Sžr/13/2012 dated July 18, 2012.