Learn how compensation for an easement is determined — in an agreement, in a court decision and by law. A practical explanation from a lawyer.
Compensation for an easement is a key legal and economic aspect of any interference with the ownership of real estate. Under Slovak law, its amount and form depend on the specific legal ground on which the easement arises – in particular, whether it is a contractual, court-ordered or statutory easement.
With a contractual easement, the amount and form of compensation are primarily the result of the parties' agreement. In practice, this may be a one-off payment, a recurring payment (e.g. annual), or the easement may even be created free of charge. What matters is that the agreement is drafted properly, particularly as regards the scope of the rights, the manner of exercising the right, and the agreed consideration. A vaguely worded agreement is a frequent source of future disputes.
If no agreement is reached, a court may create an easement in the cases prescribed by law. If a court creates an easement, it must at the same time decide on reasonable compensation. This obligation flows from the constitutional protection of property. In determining the compensation, the court takes into account, in particular, the degree of restriction of the ownership right, the purpose of the easement and the value of the affected property. The court's decision is usually based on an expert opinion. Case law stresses that the compensation must be reasonable and fair, and in certain cases it may also take the form of recurring payments, especially where the restriction on the owner is long-term or intensive. Most often, however, a one-off compensation will be determined.
Statutory easements arise directly by operation of law, generally in the public interest (e.g. utility networks, infrastructure, a landfill, apartment buildings). Their specific feature is that they constitute a public-law restriction of the ownership right; their legal regime is governed by special regulations, which take precedence over the provisions of the Slovak Civil Code. The entitlement to compensation for the creation of the easement may be regulated in the statute in various ways – sometimes expressly, sometimes only indirectly, or not at all.
In practice, these claims are often contested, particularly as regards their existence, their amount (one-off, one-off reasonable, recurring), and the time limits for asserting them. In this respect, it is necessary to keep track of both the preclusive and the limitation periods within which the claim for compensation can be asserted against the relevant entity and an action filed with a court. These are generally preclusive periods of 6 months and limitation periods of three years. Their length may, however, vary depending on the particular special regulation.
The courts' decision-making practice proceeds from the following:
-Compensation for the creation of an easement is generally a one-off payment and belongs to the owner at the time the easement arises.
Financial compensation for the creation of an easement is a property right of the party burdened by the easement (i.e. the owner of the land over which the easement is created). An easement arises in rem and attaches to the property regardless of subsequent changes in ownership. The claim for compensation for an already existing easement therefore cannot be reopened with every change of owner. Compensation for the creation of an easement has the character of a one-off payment. According to the prevailing judicial view, the entitlement to this one-off financial compensation belongs to whoever owned the burdened land at the time the easement arose (e.g. the finding of the Constitutional Court of the Slovak Republic, file no. I. ÚS 474/2013 of 7 August 2013).
-With long-term interferences, however, the proportionality of the compensation must be preserved, which may justify a different form of compensation (e.g. recurring payments).
Reasonable compensation is not a gesture of goodwill but a genuine compensatory mechanism in a state governed by the rule of law. In cases of forced restriction of ownership rights, it serves to compensate for the economic loss of the yield from property that the owner either cannot use or can use only to a limited extent. Unlike the one-off compensation paid on expropriation, in the case of a forced restriction of the ownership right, reasonable compensation may be provided periodically for the duration of the restriction, especially where the interference can be expected to be long-term. It cannot be equated with damages under the Slovak Civil Code. In determining the amount of reasonable compensation, the decisive factor is the annual yield attributable to the part of the property in which ownership is restricted. Decision-making practice also includes the view that provisions tying reasonable compensation exclusively to a one-off payment conflict with Article 20(4) of the Constitution and with the Additional Protocol (e.g. the finding of the Constitutional Court of the Slovak Republic, file no. PL. ÚS 42/2015 of 12 October 2016).
-Even where the statute does not expressly provide for compensation, it can be derived from the constitutional protection of the ownership right.
