Learn when a court or administrative authority can create an easement without the property owner's consent. An overview of the statutory grounds, case law and practical situations.
Apart from other means (agreement, inheritance agreement, adverse possession and others), an easement may also arise by decision of a competent public authority (a court or an administrative authority). It always holds, however, that such an interference is possible only on the basis of an express statutory authorisation. Neither a court nor an administrative authority may create an easement at its own discretion. The decision must always precisely define the easement in terms of its content and scope (for example, a right of way on foot or by vehicle). Since it is a constitutive decision, it is entered in the Land Registry (kataster) by way of record.
A court may create an easement only in the cases expressly provided for by law. According to the resolution of the Supreme Court of the Czech Republic, file no. 22Cdo 2186/2003: "A court cannot by its decision create an easement in cases other than those regulated in the provisions of the Civil Code, not even where, on the circumstances of the case, the creation of an easement would appear to be an indispensable way of resolving it."
Under the current legislation, this concerns primarily the following three situations:
Easements may also arise by decision of public administration authorities, where the law expressly allows it. This mainly concerns cases of public interest:
For easements created by decision of a court or an administrative authority, the right arises upon the decision itself; the entry in the Land Registry has only an evidentiary (declaratory) character and is made by way of record.
The creation of an easement is a direct interference with the exercise of the ownership right. Although the owner remains the owner of the property, their entitlements are restricted, within a precisely defined scope, in favour of the beneficiary of the easement.
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