Easements and preventive annotations of claim in the Land Registry

An easement is a burden imposed on a property (servient estate) for the benefit of another belonging to a different owner (dominant estate), according to art. 530 of the Código Civil (the Spanish Civil Code). The most frequent are the right of way, light and views, aqueduct, drainage and utility lines (power lines, gas pipelines).

There are legal or compulsory easements, which the owner of the servient estate is obliged to tolerate (arts. 549 to 592 CC), and voluntary ones, which arise from an agreement between the owners (arts. 594 and following CC). The typical case of a legal easement is the compulsory right of way under art. 564 CC: the owner of a property landlocked between others and without access to a public road has the right to demand passage through the neighbouring estates, subject to the corresponding compensation.

This compensation under art. 564 CC has 2 modules: if the passage is continuous, with a permanent path, the value of the occupied land plus the damages caused to the servient estate are compensated; if the use is occasional, without a permanent path, only the damage caused by the burden is paid.

Important: an easement cannot exist if both properties belong to the same owner; the merging of both estates in the same person extinguishes the easement (art. 546 CC), except for the application of the apparent sign under art. 541 CC when the properties are later separated.

The Civil Code allows several methods of establishment: by title (usually a public deed), by prescription of 20 years (only continuous and apparent ones, art. 537 CC), by apparent sign when dividing a property (art. 541 CC) and by final judgment. Discontinuous or non-apparent easements, such as the right of way, can only be acquired by title; in its absence, through a deed of recognition by the owner of the servient estate or a final judgment (arts. 539 and 540 CC).

Why register it? Because art. 13 of the Ley Hipotecaria (the Spanish Mortgage Law) requires that burdens and limitations of ownership appear in the property registration to take effect against third parties. If the easement is not registered, a buyer of the servient estate who meets the requirements of art. 34 LH (good faith, onerous title and registration) may be protected and not bound by it. Case law only qualifies this effect when the signs of the easement are so obvious that they amount to publicity, which is grounds for litigation: registration avoids this uncertainty.

Bear in mind also that the Registry only accepts public documents (art. 3 LH). Even if the easement has been gained through use, registering it will require a deed of recognition from the owner of the servient estate or a final judgment: no private report or opinion serves as a registrable title.

The easement is always registered as a burden on the folio of the servient estate and can also be recorded as a quality of the dominant estate (art. 13 LH): after registration, it will appear in the notas simples (property registry extracts) of both properties. It is advisable to define the route precisely, ideally with a georeferenced plan, so that the location of the affected strip is unquestionable.

It is a registry entry that publishes that the property is in litigation. Art. 42.1 of the Ley Hipotecaria allows it to be requested by anyone who claims in court the ownership of real estate or the establishment, declaration, modification or extinction of any real right: a claim for recovery, the nullity of a sale, a confessory action for an easement or the division of common property, among others.

Its practical effect is devastating for anyone who buys later: whoever acquires the property with the claim already annotated cannot allege the good faith of art. 34 LH, so the judgment handed down will affect them even if they have registered their purchase. Without an annotation, however, a good faith buyer could consolidate their acquisition and leave the judgment with no practical effect on the property.

Procedurally, it is a precautionary measure (art. 727.5.ª of the Ley de Enjuiciamiento Civil, the Spanish Civil Procedure Act). It is requested from the court, usually in the claim itself, proving the appearance of a good legal basis and danger due to procedural delay, and offering a security deposit to cover damages the measure may cause to the defendant (art. 728 LEC); the amount of the deposit is set by the judge depending on the case.

You should know that this lawsuit is not an administrative procedure: in civil proceedings, appearance requires a procurador (Spanish court representative) and legal representation (arts. 23 and 31 LEC), so the request for the precautionary measure is formulated within the judicial procedure itself. What Managora handles is the registry and documentary part: the study of the properties, the supporting documentation and, once the court issues the order, its submission to the Registry and the monitoring of the entry. The Registry does not make the annotation with the simple claim: it needs that court order.

The preventive annotation expires 4 years from its date (art. 86 LH). It can be extended for 4 more years provided the extension order is submitted to the Registry before the annotation expires; registry practice allows successive extensions for as long as the process lasts.

Expiry operates automatically, by operation of law: after 4 years without an extension submitted, the annotation ceases to have effect even if it still appears on the folio, and it no longer admits an extension. That is why it is advisable to keep track of the date from day 1.

If you win the lawsuit, the judgment is registered and benefits from the priority gained by the annotation: it prevails over entries subsequent to it. If the lawsuit ends unsuccessfully or by agreement, the annotation is cancelled with the corresponding court order.

Establishment of an easement: if it is onerous (a price or agreed compensation is paid), it is taxed under the Property Transfer and Documented Legal Acts Tax using form 600, which is self-assessed before the Agencia Tributaria (the Spanish Tax Agency, AEAT) of the autonomous region where the property is located within the general period of 30 working days from signing. The applicable modality (TPO or AJD) and the rate depend on who establishes the easement and the autonomous region: there is no single rate for all of Spain. If it is free, it can be taxed as a donation, and legal or compulsory easements have their own treatment. Managora determines the exact modality and rate for your case before settling the tax.

Added to this are the notarial fee for the deed, regulated by Real Decreto 1426/1989, and the Land Registry fee, regulated by Real Decreto 1427/1989, both calculated based on the declared value. The preventive annotation of claim does not require a deed: its costs are the security deposit set by the court (which is recovered if the measure was justified) and the registry fee for the annotation.

You can see the updated amount of Managora's fees for each service on the page for each procedure: Establishment and registration of an easement and Preventive annotation of claim in the Land Registry.

You tell us about your case in the chat and provide the basic documentation; we do the rest. For the easement: we obtain the notas simples and the cadastral certification, detect the correct method of establishment (deed, recognition, judgment or apparent sign), prepare the draft with the route well defined, coordinate the signing before a notario, settle form 600 and follow the registry qualification until the easement is registered in favour of your property.

For the preventive annotation of claim: we identify the registered property and the judicial procedure, gather the registry documentation that supports the measure and, once the court issues the order, we submit it to the competent Registry, pay the fees and monitor the qualification. The request for the precautionary measure is formulated within the civil process, where the law requires a procurador and legal representation (arts. 23 and 31 LEC). Afterwards, we notify you in advance of the 4-year expiry to process the extension on time. Start whenever you want from the procedure page: Managora prepares and submits to the Registry for you.