Acquiring an easement over time

Acquiring an easement over time

 "For the past seven years, I've been regularly using a dirt track to get to my chalet in the mountains. This path crosses other land belonging to my neighbour, who no longer wants me to use it. Haven't I acquired a right of way by car over time? " 

L, Valais

The right of way, whether on foot or by vehicle, is a very common type of land easement.

Such an easement obliges the owner of an immovable, in particular a plot of land or a building known as the "servient estate", to tolerate the owner of another immovable, known as the "dominant estate", exercising a right of use or enjoyment over his or her property.

An easement therefore imposes a passive attitude and cannot consist of an obligation to do something. An easement is therefore to be distinguished from a charge over land, which enables its beneficiary to demand positive services in his favour; the example often cited is that of the owner of land containing a spring or a forest who is obliged to deliver water or wood to the holder of the charge over land.

It should be noted that an easement may be land-based, i.e. as explained above established for the benefit of an immovable, or simply personal, in which case it is conferred only on a specific person. The object of the easement may be immovable, but there are also movable easements.

In order to be valid, a land easement or personal servitude encumbering a property must be established before a notary and entered in the Land Register. However, Swiss law does provide for situations in which a right is acquired after a certain, relatively long period of time. This is the case, for example, in real estate law, where a person has owned a piece of land, a building or even an easement for thirty years without interruption and without any corresponding registration. Once this time has elapsed, that person may apply to have the corresponding property right entered in his or her favour in the Land Register.

Acquiring a right of way through this mechanism, provided for in article 662 of the Civil Code (CC), is nevertheless complex, as several conditions must be met, including the right of way must be exercised without dispute for 30 years.

In this case, the seven years you mention are not enough to claim an entry in the Land Register, but if this road is the only possible access to your chalet, you can base your claim on Article 694 of the Civil Code, which allows an owner with insufficient access to the public highway to demand that his neighbours give him the necessary right of way, in return for full compensation. An action to establish a right of way may be brought to obtain only what is necessary, and will be brought against the neighbour from whom the right of way can most naturally be claimed. Note that there is no time limit for bringing this action, so you can do so now.