What is the Right of Easement?
The right of limited use to a real estate owner on another real estate is called easement. According to Article 779 of the Turkish Civil Code No. 4271, the right of easement is established in favor of one immovable on another immovable. The right of easement restricts a person’s right to use the real estate or imposes an obligation to use the real estate in a certain way. For example, the person who has the right of easement on his real estate may need to have a part of his land used as a way to the other real estate owner. A part of this real estate is used to open the way. Thus, the right of easement is established for the other real estate that does not have a road frontage.
What are the Types of Easement Rights?
There are three types of easement. These:
- Supreme right, that is, the right to build on or under a real estate
- Right of resource, that is, the right to benefit from the water source in a real estate
- The right of way, that is, the right to pass through someone else’s land
In terms of benefiting authority, it is divided into two as positive and negative. If there is a situation such as actively benefiting from a passage between two real estates, it is called positive easement. Situations where there is no active use, such as the right not to cover the landscape, are called negative easement.
How Is Easement Established?
The right of easement can be established by the easement agreement of the parties or by litigation. In case of agreement of the parties, a formal contract must be made and registered in the land registry. If it is not registered in the land registry, the new owner of the real estate may not recognize this right. For this reason, only the contract between the parties is not sufficient for the right of easement to be permanent. However, according to Article 789 of the Turkish Civil Code No. 4271, local customs are considered valid if no formal agreement is made between the parties in cases such as using the animal grazing area and making an arc to get water into the field.
What are the Documents Required for Establishment of Easement Rights?
It is necessary to apply to the Land Registry and Cadastre Directorate to which the real estate to which the right of easement is requested is affiliated. The documents that the parties must submit to the relevant Land Registry and Cadastre Directorate in order to conclude a right of easement agreement are as follows:
- Title deed of both real estates
- The original and three photocopies of the identity cards of the real estate owners
- If the representative of the real estate owner will apply, the copy of the power of attorney and its identity
If the owner of the real estate has died, the heirs must have applied to the Land Registry and Cadastre Offices and have the transfer process done in their own name. Revolving fund service fee is paid for these transactions.
