Change of easement: Free legal advice

Questioner

Dear, We own a house with a back garden. Our back garden borders the last end of a dead end path. This path serves to open up all the back gardens of our (back) neighbours. Each neighbour owns the piece of path directly behind his/her garden and we give each other the right of way. Because our piece of back path is the last piece and a dead end, it can only be used by us. Although we formally give right of way to all other neighbors in the street, it has no function. I would therefore like to use this piece of path to place a storage room. This would in no way hinder the current function of the path, for none of my neighbors. My direct rear neighbour has no objection. I will have to apply for a permit for the storage. My question now is: how can I arrange to change the function of my piece of path from path to storage? Is this via the permit application? Do I have to have something changed in my deed of ownership via the notary? I look forward to hearing from you. Kind regards,

Lawyer

The easement will have to be changed by means of a notarial deed in which all owners of the houses bordering the path cooperate. If I understand correctly, you want to place the storage on your part of the path and the part of your rear neighbor. In that case, your rear neighbor must transfer his part of the path to you or, for example, establish a right of superficies on it.

Questioner

Hello André, Thanks for your response. A little clarification from my side is perhaps required. I do not intend to also use the part of the path that currently belongs to my rear neighbor. I only want to place the storage on my own part of the path. So there will be no transfer of land necessary. The easement will therefore have to be changed. If I understand you correctly, this does not only apply to my direct neighbours, but to ALL neighbours who border the path, even though they actually have nothing to do with 'my' dead-end piece? Does this mean that all those neighbours have to implement a change in their notarial deed? Yours sincerely,

Lawyer

I do not know the text of the easement, but it is customary for an easement to be established between all adjacent parcels for the entire path. If this is the case, all the owners concerned must indeed cooperate in a deed in which the easement included in the title deeds is changed. A complicating factor here is that all mortgage banks must also give permission for this. All in all, a costly affair! It may also be the case (less common) that a less general formulation of the easement is included, in the sense that only your rear neighbour has a right of way over your part of the path. In that case, it is sufficient for your rear neighbour to cooperate (with permission from his bank if the property is mortgaged). If you send me your title deed (via the direct contact option), I will check what applies free of charge. This does not concern the actual use of the path, but the legal status of the easements; if general wording has been used, an easement may also apply to your part of the path for the benefit of owners who do not use it.

Questioner

Hello André, One more additional question: I understand that easement is regulated in Book 5 of the Dutch Civil Code. Article 79 describes a circumstance under which an easement (e.g. right of way) can be terminated: 'The court may, at the request of the owner of the servient estate, revoke an easement if ... or the owner of the dominant estate no longer has a reasonable interest in the exercise, and it is not plausible that the possibility of exercise or the reasonable interest in it will return.' Our situation seems to fit in well here (after all: no one has an interest in walking on our piece of dead-end path), but a court case is apparently necessary. Could you indicate how this would work in practice? Still with the intervention of a Notary, or should we take a different path? Thanks again for your reply,

Lawyer

I advise you, for reasons of cost, to first take the amicable route, i.e. to conclude an agreement with all residents and then have this agreement drawn up in a notarial deed by a notary. If 1 or more residents do not want to cooperate, you can possibly start a procedure with the court with respect to those residents to cancel the easement.