Rights over real estate are not just property rights. Easement, which allows you to benefit from a real estate to a certain extent or to have a certain authority over the real estate, can provide various usage rights without transfer of ownership. The scope, type and method of registration in the land registry of this right; It can affect many issues, from the use of the real estate to its value.
What are the Features of Easement?
Easement right is one of the limited real rights that gives the right holder the right to benefit or use a real estate to a certain extent. While the property right grants the owner broad powers over the real estate, the scope of the easement is determined in line with the purpose for which it was established and legal regulations. For this reason, the rightful owner does not become the owner of the real estate; He can benefit from the real estate within the framework of the powers granted to him. Considering the regulations in the Turkish Civil Code, the prominent features of the easement can be listed as follows:
Easement, unlike property rights, is a limited real right that provides a certain right of use or enjoyment on the real estate.
Depending on the nature of the right, some usage rights of the real estate owner may be restricted or the owner may be obliged to avoid certain behaviors, thus the way the real estate is used may be directly affected.
The easement right can be established in favor of a specific person or for the benefit of another immovable property, and in this respect, it can be arranged depending on both the person and the immovable property.
As a rule, registration in the land registry is important in establishing easement rights on immovable properties, but in some cases stipulated by law, it is also possible to acquire rights before registration.
Since different types of easements, such as right of way, right of way, right of origin, right of residence and usufruct, grant different powers to the right owner, their scope varies depending on the type of right.
Ownership of the immovable property continues to remain with the owner, and the easement right may limit some powers that can be exercised by the owner depending on the scope of the right.
Due to these features, determining the scope of the easement correctly is important for both the real estate owner and the right holder. Especially when evaluating the sale, use, construction opportunities and economic value of the real estate, easement records in the land registry should also be taken into consideration.
What are the Types of Easement Rights?
Easement rights are divided into different types according to whose benefit the right is established and the powers it provides to the right owner. Some easements allow one immovable property to benefit from another immovable property, while others grant the right to use or benefit a specific person. The main types of easement rights that may be encountered within the scope of the Turkish Civil Code are:
1. Easement in favor of real estate
Easement in favor of immovable property is the right established on one immovable property for the benefit of another immovable property. In this relationship, the immovable property that provides benefit is referred to as "benefiting immovable", and the immovable property that has a burden on it is referred to as "burdened immovable". According to Article 779 of the Turkish Civil Code, this right may enable the owner of the encumbered immovable property to refrain from using certain powers arising from the right of ownership or to allow the beneficiary immovable property owner to use the encumbered immovable property in a certain way. Establishing an easement that allows passage from a neighboring parcel to access a property can be cited as an example of the usage relationship between properties.
Easement Right in Favor of a 2nd Party
An easement right in favor of a person is established in favor of a real or legal person rather than a specific immovable property. The scope of the right may vary depending on the type of easement and its establishment conditions. In this group, in addition to personal rights such as usufruct and residence rights, there may also be easements that can be transferred or passed on to heirs under certain conditions.
For this reason, it is not possible to say that every easement established in favor of an individual has the same legal consequences. Issues such as whether the right can be transferred and its duration are evaluated according to the relevant easement type.
3. Right of Construction
The right of construction is a type of easement that gives a person the authority to build a structure under or on top of someone else's real estate or to maintain the existing structure. Thanks to this right regulated in Article 826 of the Turkish Civil Code, the ownership of the building and the land can be separated under certain conditions.
If the right of construction is established independently and continuously, it is also possible to register it as an immovable property on a separate page in the land registry. Especially in long-term land use and building investments, superficies can be an important legal tool.
4. Resource Rights
Resource right is an easement right that provides the authority to take water from a source located on a property belonging to someone else and to flow this water to one's own land. The resource right regulated in Article 837 of the Turkish Civil Code constitutes the legal framework for benefiting from water resources. If the right is established independently and for at least thirty years, it can be registered in the land registry as an immovable property.
5. Usufruct
Usufruct right is a comprehensive easement that gives the rightful owner the authority to use and benefit from a property, right or asset belonging to someone else. When there is a usufruct right on the immovable property, while the ownership remains with the owner, the authority to benefit from the immovable property passes to the usufruct owner according to the scope of the right. The usufruct right may end with the death of the beneficiary in the case of real persons, or in cases such as the expiry of the agreed period or the termination of the legal entity in the case of legal persons. The usufruct right in favor of legal entities cannot exceed one hundred years.
6. Right to Residence (Sukna)
The right of residence gives the authority to use a building or a part of a building as a residence, according to Article 823 of the Turkish Civil Code. This right, also known as the right of residence, depends on the individual, cannot be transferred to anyone else and does not pass on to the heirs.
Depending on the scope of the right, the beneficiary can live in the house alone or with his family or the people he lives in the same house with. When determining the scope of the right of residence, the personal needs of the right holder are taken into account.
7. Right of Way
Right of way is a type of easement that allows the owner of a real estate to pass over another real estate. It may come to the fore especially in real estate that does not have sufficient connection to the public road.
Article 747 of the Turkish Civil Code allows the owner, who does not have an adequate passage from his property to the public road, to request the right of passage from his neighbors for full price, under certain conditions. When determining the location of the crossing, the previous ownership and road condition, as well as the balance of damages and interests of the parties, are taken into account.
How to Establish Easement?
The way the easement right is established may vary depending on the type of right and the legal status on the real estate. According to Article 780 of the Turkish Civil Code, registration in the land registry is required as a rule for the establishment of easement rights. In order for registration to take place, there must be a valid legal reason that forms the basis for the establishment of the right.
The validity of the contract regarding the establishment of the easement right in favor of the real estate depends on its official preparation. After the parties complete the necessary procedures, the easement is registered in the land registry. Thus, the scope of the right and the property in favor of which it is established are determined in the land registry records. However, easement rights are not established by agreement of the parties in every case. In case the conditions stipulated in the law are met, some rights, such as the compulsory right of way, may also be brought to the agenda by court decision. In addition, in exceptional cases specified in the law, it is possible to acquire the easement right before registration.
During the transaction, it is important to clearly determine the type, scope, duration of the right and in favor of which real estate or person it is established. Since establishment conditions may differ depending on the type of easement, current land registry records and relevant legislative provisions must be taken into account in transactions related to concrete real estate.
What Powers Does the Easement Provide to Its Owner?
The powers granted to the easement right holder vary depending on the type of right and the scope determined at the time of establishment. Right holder; may use the real estate for a specific purpose, benefit from the real estate, or request the owner of the real estate to refrain from certain behaviors that would prevent the use of the right. For example, while the right of way provides the opportunity to pass over another real estate, the right of way may give the authority to build a structure under or above a land belonging to someone else.
These rights do not mean that the ownership of the real estate passes to the easement owner. While the ownership continues to remain with the current owner, the rightful owner can benefit from the real estate within the limits determined by the type and scope of the easement.
Can real estate with easement rights be sold?
It is possible to sell a real estate that has an easement right on it. The existence of the easement does not directly prevent the owner of the real estate from transferring his ownership. However, as a rule, the sale does not automatically terminate the existing easement registered in the land registry. The new owner takes over the real estate with the rights registered in the land registry and must comply with the restrictions imposed by the easement. For example, a right of way may affect the use of a certain part of the property, while a usufruct right may significantly limit the new owner's ability to actually benefit from the property. Since such records may affect the conditions of use of the real estate and the buyer's decision, it is important to examine the scope of existing easements before the transfer.
How Does Easement Affect Real Estate Value?
The effect of easement on real estate value; It varies depending on the type of right, its duration, scope and to what extent it limits the use of the real estate. If an easement on the real estate affects the owner's usage possibilities or the economic benefit that can be obtained from the real estate, it may become one of the factors to be taken into account when determining the real estate value.
For example, the right of way narrowing the usable area, the usufruct right limiting the owner's use of the real estate, or the right of way changing the conditions of use on the land may affect the market value of the real estate. However, not every easement registration has the same result in the value of the real estate. The actual and legal effect of the right on the real estate; It should be considered together with other factors affecting the valuation such as location, intended use, zoning status, environmental features and current market conditions.
Frequently Asked Questions
What is Easement in Title Deed?
The easement right in the land registry refers to the right to use or benefit from a real estate in favor of another person or real estate. This record does not mean that the ownership is transferred, it shows that some of the powers of the real estate owner are limited according to the scope of the easement.
How to Remove Easement from Title Deed?
In order to remove the easement from the title deed, the right must be terminated and, when necessary, the cancellation process must be carried out. The entry in the land registry may be removed in accordance with the expiration of the period, the right holder's request for cancellation or other termination reasons stipulated in the relevant legislation.
Can Easement Be Indefinite?
The duration of the easement right varies depending on the type of right and the conditions of establishment. While some easements can be established for a certain period of time, others can be established without any time limit. For personal rights such as usufruct and residence rights, the termination conditions are determined according to the relevant legal regulations.
