Consideration for the establishment of the so-called compulsory easement

Abstract

The article is devoted to the analysis of the nature of consideration which may be due when a property owner (or, in the case of the so-called “transmission easement”, an entrepreneur) may demand the establishment of a special type of easement, i.e., the so-called “compulsory easement”. The establishment of a compulsory easement may be claimed in court and is always associated with the obligation to grant an equivalent thereof in the form of an appropriate consideration. It may take the form of a one-off benefit, although it need not have to be expressed in money. The consideration is not a form of compensation for damage, but in fact it is a kind of price paid in exchange for the acquisition of a limited right in rem. Due to the nature and duration of the encumbrance, a judicial award of a periodic compensation would have been more reasonable, but it is de lege lata inadmissible. In this regard, it would be advisable to make appropriate modifications to the Civil Code, including the restoration of the institution of real burdens.

Keywords

• easement
• consideration
• compensation for damage
• real property
• right in rem