Can a co-owner create an easement (for example an easement of lifetime residence) over property of which they themselves own a share?
The question of whether an easement can be created in favour of a co-owner of the burdened property is not treated uniformly in the decision-making practice of the Slovak and Czech courts. According to the judgment of the Prague Municipal Court, file no. 33 Ca 110/1998, an easement cannot be created in favour of a co-owner of the property to be burdened.
On the other hand, the case law of the Supreme Court of the Slovak Republic allows exceptions. In its judgment file no. 8 Sžo 98/2010, drawing also on decision R 45/1986, the court held that the creation of an easement in favour of a person who is at the same time a co-owner of the property cannot be ruled out, in particular in a situation where the original owner transfers part of the property and retains a co-ownership share. In such a case, they may create for themselves a right corresponding to an easement (e.g. use of the whole property), effective also against the legal successors of the other co-owner. The Supreme Court of the Slovak Republic also stressed that the creation of an easement in favour of a co-owner does not result in a merger of the right and the obligation. The content of the co-ownership right differs from the content of the right under the easement – for example, an easement of lifetime residence gives the beneficiary broader and more specific protection than co-ownership alone provides. In conclusion, although the general rule is that an easement is created in favour of a person other than the owner of the burdened property, the case law also allows it to be created in favour of a co-owner where there is a rational legal reason for it and it serves to protect their legitimate interests, in particular vis-à-vis future acquirers of the co-ownership share.
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