We are creating an easement over land with several co-owners. Who has to sign?

This question comes from neighbours needing access, distribution companies installing utilities and developers preparing infrastructure. The land has three or thirty co-owners, and only some have signed the agreement.

The owner creates it, not the majority

Easements restrict the owner of property for another’s benefit by requiring the owner to tolerate something, refrain from something or perform something (Section 151n(1) of the Civil Code). The owner may create an easement by agreement, unless special legislation also grants this power to others (Section 151o(2)).

For co-ownership, two situations often confused in practice must be distinguished:

All co-owners are jointly and severally entitled and bound by legal acts concerning the jointly owned property.

— Section 139(1) of the Civil Code (unofficial translation)

By contrast, decisions on management of jointly owned property are taken by a majority calculated by share size (Section 139(2)). Creating an easement is not ordinary management but a legal act permanently burdening the property. Majority consent is therefore insufficient, and one missing co-owner’s signature stops the whole application.

Why separate agreements do not help

A common attempt is to conclude a separate agreement with each co-owner and file them gradually. The Cadastral Act makes this difficult:

A registration application must cover all legal acts contained in the agreement that require registration, and all properties concerned by the legal acts contained in the agreement that require registration. Only one agreement may be attached to the registration application; that agreement may contain several legal acts.

— Section 30(5) of the Cadastral Act (unofficial translation)

One agreement may contain several legal acts, which is useful for linear infrastructure. However, several separate agreements cannot be attached to one application, nor can an application cover only part of what the agreement contains.

A special exception applies to common property in a land community, where the law expressly permits agreements to be concluded individually in several instruments; we discuss this in an investor wants to buy land from a land community.

Other points to watch

• Certified signature of the burdened party. When an easement is created, the burdened party’s signature must be certified; when it is terminated, the beneficiary’s signature must be certified. This does not apply to a notarial deed or an agreement authorised by a lawyer (Section 42(3)). With dozens of co-owners, organising certification is a task in itself.
• Registration is a condition of creation. Acquiring the right corresponding to an easement requires registration in the Land Register (Section 151o(1)). A signed agreement alone does not create the right.
• The survey must match the scope. If the agreement creates a wider right than the survey plan shows, the proceedings will be suspended; see creating an easement for utilities.
• The easement survives a change of owner. Easements attached to ownership of property pass with ownership to the acquirer (Section 151n(2)), so selling a share changes nothing.
• Preservation and repair costs. Unless the parties agree otherwise, the beneficiary bears a proportionate share of preservation and repair costs; if the owner also uses the property, they share those costs according to their respective use (Section 151n(3)). This belongs in the agreement, otherwise it may become a dispute years later.

When a co-owner cannot be found

This is the most common reason a project fails. There are three solutions, none quick: trace and contact an heir or unknown owner, negotiate with the Slovak Land Fund if it administers the share, or find a route avoiding the plot. For linear infrastructure, compulsory acquisition of a right corresponding to an easement may also be available, with its own regime and deadlines; see part of our land is being expropriated.

How we can help

We arrange an easement, including drafting the agreement, coordinating the survey and organising signatures, so the application can proceed as a whole. We file applications through preparation of agreements and registration applications. If proceedings are already under way and have been suspended, we handle suspended and refused cadastral proceedings.

With many co-owners, it is worth contacting us before the first signature. Collecting signatures a second time is harder than the first.