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Thu 7 Feb 2008 04:00 AM

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Easements and real estate

Each property owner is in principle presumed to have the absolute right to exclusively enjoy and utilise his property.

Each property owner is in principle presumed to have the absolute right to exclusively enjoy and utilise his property. But being the owner of a real estate property does not preclude others from having access to it.

This article will provide real estate property owners with a clearer picture of the rights attached to that ownership: that another person or adjoining landowner can also benefit from their property through the principle of easement.

What is easement? Article 1362 of the UAE Civil Code defines it as the right of other adjoining-property owners to use the land of another for a special purpose. It goes without saying that an easement does not then give the holder a right of ‘possession' of the property, only a right of use.

When talking about easement, the dominant estate is the name given to the property that has the benefit of an easement over another property; the plot of land which bears the burden of easement is known as the servient.

Article 1365, sections 1 and 2, state that any restrictions imposed upon the right of a property owner to build shall call the rights of easement into play, unless a contrary agreement has been made.

This will compel the restricting party to allow access to the neighbour who wishes to build on his own property. Failure to comply with these rights could give rise to a claim for corrective action or compensation.

Further outlining these rights, Article 1370 states that, "the owner of the servient property may not do any act such as to affect the use of the right of easement". By this, it is meant that he cannot be denied reasonable access to their property or be prevented from carrying out useful repairs and the like.

But the rights of the dominant property owner are not boundless. The owner of the dominant property may exercise his rights within lawful limits, and must do what is necessary for the use and maintenance of his right without increasing the burden of the easement. He may use that right in such a manner as to cause no more than minimal damage.

How are the rights of easement acquired? The law provides that they may be acquired by consent, legal disposition or inheritance but the rights must be defined in the document where they are created and by the prevailing custom. Under the UAE law, there are several types of easements: the easement of right of way, right to draw water, rights of passage of water, for example.

Equally, how may the rights of easement be terminated? The Civil Code stipulates several provisions, including but not limited to:

Aupon the expiration of the period laid down or by virtue of the subject matter ceasing to exist.

Bif dominant and servient properties are brought under one ownership

Cif the rights become impossible to exercise because of a change in the condition of the servient and dominant properties

Dif the owner annuls his use, and notifies the owner of the dominant property that he has withdrawn from the use of such right.

In light of the limitations that an easement can impose on a property, it is advised that you carefully look into the easements and restrictions attached to a property before purchasing it. Failure to do so could leave a new landowner bearing the burden of a servient estate.

Dr. Khalid Al Mehairi is a Managing Partner & Attorney at Law for Emirates Advocates in Dubai.

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