When does an easement arise by adverse possession? Learn the conditions, time limits and the most common cases in practice.
Adverse possession of an easement is a way for a natural or legal person to acquire a right corresponding to an easement (e.g. passage across land) by exercising it over a prolonged period, provided the other statutory requirements are met.
In a contractual relationship the right arises by agreement of the parties (oral or written); in adverse possession the right arises through actual use (as if it existed), even though no agreement was ever concluded in any form.
The most common cases of adverse possession of an easement concern the right of way on foot across land and the right of way by motor vehicle.
To acquire a right corresponding to an easement by adverse possession, you must satisfy several statutory conditions based on the legal rules governing adverse possession. The basic prerequisites include:
4. Lawful exercise (good faith)
The person must be in good faith that the right belongs to them, i.e. that they cross the land lawfully. Good faith is assessed objectively and must last throughout the entire acquisition period. The assessment is whether the person, exercising ordinary caution, could have had doubts about their right to pass across the land.
The time limit for acquiring a right corresponding to an easement by adverse possession is 10 years. This is an analogous application of the rules on adverse possession of the ownership right to real estate. The period for adverse possession of an easement starts to run from the day the right began to be exercised, i.e. from the moment you begin actually exercising the right corresponding to the easement (e.g. passing across the land) in good faith that this right belongs to you.
An easement cannot be acquired by adverse possession whenever one of the basic statutory conditions of adverse possession is missing, or where the legal order excludes this method of acquisition. For example:
Adverse possession can be proven by combining several means, for example:
Adverse possession of an easement arises directly by operation of law, provided all statutory conditions are met and the acquisition period has expired. It is therefore not a right created by a court decision, but a legal state that occurs automatically once the statutory prerequisites are fulfilled. If a person wishes to obtain a basis for registering the easement in the Land Registry (kataster), they must, as a mandatory step, file an application to open court proceedings for confirmation of adverse possession. The court does not decide on adverse possession constitutively — it does not create the right — but only assesses and determines retrospectively whether adverse possession actually occurred. The subject of the court proceedings may be confirmation of adverse possession of an easement in rem (attached to a thing) as well as of an easement in personam, belonging to a particular person.
Since 1 May 2021, notaries have lost the power to assess adverse possession and issue certificates of a declaration of adverse possession. Their competence has passed to the courts, which confirm adverse possession in special proceedings conducted under § 359a et seq. of the Slovak Code of Civil Non-Contentious Procedure.
The kataster does not record the creation of a right corresponding to an easement automatically. To register the easement, a final and binding court order confirming adverse possession, which is binding on everyone, must be submitted.
When is it advisable to turn to a lawyer?
Turning to a lawyer is advisable above all in situations where a dispute arises over the existence of an easement, its scope, or whether the conditions for its acquisition by adverse possession have been met. A lawyer can competently assess the legal situation and propose a suitable strategy, whether that means an out-of-court solution (e.g. an agreement with the owner of the burdened property) or asserting the right in court proceedings.
Their role is also significant in systematically securing the evidence proving adverse possession of the easement. In practice, a lawyer's legal assistance is particularly important in cases where it is necessary to prove the long-term, uninterrupted and good-faith exercise of a right corresponding to an easement, or where there is a discrepancy between the actual use and the legal state recorded in the Land Registry.
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