12.09.2024

Mortgage of the easement right. From theory to practice

A mortgage is an accessory right in rem over movable or immovable property, assigned to the performance of an obligation, which gives the mortgagee the right to pursue the immovable property in the possession of whoever may be in possession of it and to be paid in priority to other creditors from the price of that property.

What property can be mortgaged?

According to Article 2350 of the Civil Code, a mortgage may be on movable or immovable, tangible or intangible property, and may encumber specific or determinable property or universalities of property.

And according to Article 2379 of the Civil Code, a real estate mortgage may relate to immovable property and its appurtenances, the usufruct of such immovable property and its appurtenances, the shares in the right over immovable property, and the right of superficies.

What is an easement?

An easement is an encumbrance encumbering an immovable property, called the servient estate, for the use or utility of the immovable property of another owner, called the dominant estate. The right of easement is a right in rem in immovable property, which is a component of the right of private ownership.

Among the legal characteristics of the easement, for the purposes of this article, we emphasize that the easement is an accessory to the land to which it belongs and a burden imposed on the servient land, the person of the owners of the two estates being of no importance for the existence of the right in question. As a result, the easement will be transferred by legal instruments at the same time as the dominant land, without it being necessary for the deed of transfer of ownership to expressly mention it. It may not, however, be alienated or encumbered separately from the dominant land. In the same way, the servient land will be transferred together with the servitude constituted on it[1].

When can an easement be mortgaged?

As we have seen, real estate mortgages may relate to immovables and their appurtenances, the usufruct of these immovables and their appurtenances, the shares in the right over the immovables, the right of superficies

Under the generic term of "accessory", a mortgage may be taken out on those assets or rights which are in a relationship of accessory relationship (functional dependence) with the main mortgaged asset, such as the right of easement if the mortgaged property is the dominant property[2].

Therefore, where the mortgage may be on the servient land, the servitude by which it is encumbered cannot also be mortgaged, since it is itself an encumbrance for the benefit of another property.

On the other hand, where the mortgage is on the dominant land, the easement created for the benefit of the dominant land is an accessory to the mortgaged property, which is why it can also be mortgaged. Moreover, this is a natural solution, since the servitude right is constituted in favor of the dominant land and not in favor of the holder of the property right, which is why it follows the fate of the dominant land, regardless of who owns it.

In any case, the easement can never be mortgaged individually, as it is an accessory to the dominant land.

How is a mortgage on an easement registered in the land register?

The provisions of Article 885 of the Civil Code stipulate that property rights and all other rights in rem relating to immovable property entered in the land register are subject to registration.

According to Article 888 of the Civil Code, registration in the land register is carried out on the basis of a notarially authenticated notarial deed, a final court judgment, an heir's certificate or on the basis of another document issued by the administrative authorities, in cases where the law so provides.

In practice, the question has arisen as to how to register the mortgage on the right of easement, given that the owner of the servient land is not a party to the mortgage contract.

The solutions ranged from registering the mortgage only in the land register of the servient land, only in the land register of the dominant land or registering the mortgage in both land registers.

Of these solutions, we consider that the correct one is to register the mortgage on the servitude in both land registers of both the dominant and the servient land, the servitude right on which the mortgage is carried being registered in both land registers[3]. 3] There have also been isolated solutions rejecting the application for an entry in the land register altogether, considering that the servitude right cannot be the subject of the mortgage, because it is not explicitly listed in art. 2379 of the Civil Code. This solution is clearly wrong, as the easement is, as we have pointed out, an accessory to the dominant land.

An article by Marius Chelaru, Managing Associate (mchelaru@stoica-asociatii.ro), STOICA & ASOCIAȚII

[1] E. Chelaru, Civil Law. Principal rights in rem, 5th Edition, C.H. Beck Publishing House, 2019, p.386.

[2] Fl.-A. Baias, E. Chelaru and others, The New Civil Code, Commentary on articles, 3rd edition, Editura C.H. Beck, 2021, p. 2755.

[3] According to art. 81 of the Regulation of reception and registration in the cadastre and land registers of 08.02.2023, approved by Order no. 600/2023, the easement right shall be entered in part III of the land register of the real estate constituting the servient land, and the benefit of the easement right shall be noted in part II of the land register of the real estate constituting the dominant land.