{"product_id":"vragen-41943-aan-de-zijkant-van-ons-erf-ligt-parallel-aan-de-erfgrens-over-de-gehele-lengte-van-zo-n-30mtr-een-fi","title":"Lifting an easement? Discover your options!","description":"\u003ch4\u003e Questioner\u003c\/h4\u003e\n\n On the side of our property there is a cycle path, parallel to the property boundary, over the entire length of approximately 30 metres.\n This cycle path is located entirely on our property, this has been checked by the land registry.\n As a result, the municipality has 'taken away' approximately 100m2 of our property.\n Because it was all open early (more than 40 years ago), a path was created because it was used as a shortcut. \nThe path has also been provided with concrete tiles for years now, along with cycle path signs.\n\n In 2012 we bought a detached house on this property, but we knew that there was an easement on the cycle path, which was also included in the deed of sale.\n\n It now appears that the cycle path is hardly used, partly because it is somewhat unsafe.\n Our yard is enclosed between two cycle paths at the front and back, the cycle path that runs across our yard is a turn-off from the cycle path at the back of our house to the cycle path to the front of our house.\n The cycle path at the front runs parallel to a busy national road.\n In 9 out of 10 cases, users of the cycle path have to cross the road, otherwise they do not use the cycle path on our property but simply cycle straight ahead.\n Due to a recent adjustment to the road, it is no longer possible to cross the busy road 'directly' from the cycle path. \nThis is because concrete elevations have been constructed between the road and the parallel cycle path where the cycle path across our yard ends.\n 'Just quickly cycling across' is no longer possible, which is a good thing because otherwise you would cross the road without a good view of it, which would not lead to the first accident on this road.\n\n The result is that the cycle path is hardly used anymore, except for the occasional pedestrian.\n Most people use the cycle paths in front of and behind our house that run parallel to the road and cross at an intersection with traffic lights about 500 metres further on, which is also a lot safer.\n\n We would like to know whether it is possible to get rid of the easement and therefore the cycle path so that we can have our entire property at our disposal again.\n\n No idea whether it has any influence, but we have never received any compensation in any form from the municipality for the use of our property. \nNot that we would want or wish that, but purely as an indication in the story.\n\n Partly because of the cycle path, we are seriously hampered in our plans for the garden\/renovations.\n The cycle path is considered a public facility, which means that the side of our house is also counted as a 'front view'.\n This limits our backyard area to less than 20% of the total surface area.\n The consequence of this is that everything we want to do in terms of construction work in the other 80% of our property requires a permit, even if it concerns simple renovations that would normally not require a permit in the backyard area, such as installing a garden shed.\n In addition to this restriction, there are also rules that require a minimum distance of 3 meters from public facilities such as this 'cycle path'.\n This means that any construction works in our situation must be more than 5 metres (3 metres according to the regulations + 2.2 metres of the cycle path width) from our property boundary. \nThe layout of our garden then becomes too ridiculous for words as everything has to be in the middle of it.\n\n I would like more information about the possibilities for lifting the easement because the cycle path is hardly used.\n\n\u003ch4\u003e Lawyer\u003c\/h4\u003e\n\n If you can demonstrate that the municipality no longer has a reasonable interest in the easement and it is not plausible that the reasonable interest will return, then the easement can be lifted by the court. Of course, you would be wise to first contact the municipality to see whether and under what conditions the municipality might be prepared to cooperate in lifting the easement.\n\n\u003ch4\u003e Questioner\u003c\/h4\u003e\n\n Thank you very much for your quick response on this.\n By 'demonstrating' do you mean, for example, keeping track of the traffic flow on the cycle path?\n Otherwise I would not know how to demonstrate the municipality's interest in this, since the municipality is not the direct stakeholder in this, but the users are. \n\n\u003ch4\u003eLawyer\u003c\/h4\u003e\n\n If you can demonstrate that the municipality no longer has a reasonable interest in the easement and it is not plausible that the reasonable interest will return, then the easement can be lifted by the court. Of course, you would be wise to first contact the municipality to see whether and under what conditions the municipality might be prepared to cooperate in lifting the easement.\n\n Correct. If the path (as you demonstrate) is hardly or not at all used anymore and there is an alternative that is apparently currently the most used cycle route, it will be difficult for the municipality to demonstrate the importance of maintaining the easement of the (cycle) path over your plot.\n\n\u003ch4\u003e Questioner\u003c\/h4\u003e\n\n In the meantime, some time has passed and I have continued with some research into this.\n I received the field drawing of our plot from the Land Registry and had the Land Registry conduct an investigation into the easement. \nToday I received the results in which they state the following about our plot: 'It has become apparent that the requested easements were not found in the aforementioned registrations.'\n This research was done going back to April 1, 1950 in the public records.\n The sources consulted for this are also listed in the document.\n These concern four pieces from the registers of the municipality itself.\n When I look at our deed of sale, none of the terms 'easement' or 'right of way' are used.\n The literal reference is as follows: \n'Special provision: Seller has expressly informed buyer that a portion of the purchased property, measuring approximately ninety-four centiares, and as further indicated schematically on a drawing attached to this deed, is in use by the municipality -name municipality- as a cycle path. According to information from the municipality -name municipality- it concerns a historical path that was converted into a cycle path a few years ago. It concerns a public path as referred to in article 4 paragraph 1 of the Roads Act. The municipality -name municipality- is both the road manager and the person responsible for maintaining the path.'\n\n I myself, as well as the Land Registry, found the term 'in use by the municipality' very broad and somewhat strange.\n In our deed of sale, under 'Method of acquisition of ownership', the same public register number is stated as that which is also present in the consulted sources of the easements research by the land registry.\n \nTaking all this into account, I wonder whether there is any form of 'easement' at all or whether we are talking about a form of 'unlawful use' and whether I have a reasonable chance of getting my property back?\n Who can tell me more about the possibilities here?\n\n I have not yet informed the municipality of my findings, nor have I asked them to share their interest in maintaining it.\n The reason for this is that I would like to know my chances in advance and I would like to have supporting material in hand before I submit this to the municipality.\n\n\u003ch4\u003e Lawyer\u003c\/h4\u003e \nWithout being able to assess the documents themselves, I think that there is no question of an 'easement'. In any case, this was not established by a notarial deed. On the contrary, the document you quote seems to indicate that the municipality was once allowed to construct the cycle path on the basis of a usage agreement (with whom and under what conditions the usage agreement was made apparently remains unclear). The term 'use' is usually (explicitly) used if it is the intention of the parties involved that no easement \/ property right is established or could arise through the passage of time. After all, a 'user' does not have 'possession' and 'possession' is a requirement to start the term for 'acquisitive prescription'.\n \nIncidentally, this does not mean that there is any question of unlawful use. On the contrary, the municipality seems to be able to rely on a usage agreement with one of the previous owners and as long as you (as current owner) have not terminated this use, there can be no question of unlawful use.\n\n You should take into account that if you want to terminate the use, you must observe the requirements of reasonableness and fairness, which in any case implies a reasonable notice period. Given the years of use, a reasonable notice period (I estimate) should be at least a few months to a year. Furthermore, you must motivate the termination well and weigh your 'major' interests in termination against the 'minor' interest of the municipality in continuing the use.\n\n Finally, just terminating the municipality's right of use is not enough. You will also have to take into account that:\n \n'This concerns a public path as referred to in Article 4, paragraph 1 of the Roads Act. The municipality -name municipality- is both the road manager and the person responsible for maintaining the path.'\n\n You will also have to arrange for the path to lose its status as a public path (I assume that it has been established that the path is public within the meaning of the Roads Act) before you can use the piece of land as you see fit. Via the attached link you can see that you do need the cooperation of the municipality to withdraw the path from public use:\n\n https:\/\/vng.nl\/onderwerpenindex\/milieu-en-mobiliteit\/wegenverkeerswet\/questions-en-responses-wegenwet-openbaarheid-van-wegen\n\n","brand":"Rechtswinkel.nl","offers":[{"title":"Default Title","offer_id":55017792602461,"sku":"","price":0.0,"currency_code":"EUR","in_stock":true}],"url":"https:\/\/www.rechtswinkel.nl\/en\/products\/vragen-41943-aan-de-zijkant-van-ons-erf-ligt-parallel-aan-de-erfgrens-over-de-gehele-lengte-van-zo-n-30mtr-een-fi","provider":"Rechtswinkel.nl","version":"1.0","type":"link"}