Easement expired? Find out now!

Questioner

Can an easement recorded by a notary expire? The right of way has not been used since 1971. There has not even been a path since then. Is this a case of the lapse of easement due to non usus?

Lawyer

This is possible. The notary can draw up a statement and have it registered in the land registry stating that the easement has expired by prescription, but a number of conditions must be met: 1. if possible, the person against whom the prescription applies (i.e. the person entitled to the easement) must cooperate and declare that he or she agrees to the lapse of the easement; 2. If that doesn't work, you must submit evidence to the notary that, as they say, 'sufficiently demonstrate' that the fact to be registered has occurred. This evidence can be anything, for example old photos showing that the path is no longer there, If 1 or 2 cannot be complied with, the land registry will only make a provisional entry and will only register the declaration if an order is issued to that effect by the court.

Lawyer

A small addition to Mr Steijns' contribution. Lapse of an easement due to non usus was a way of cessation of an easement, which occurred in the old Civil Code (before 1992). The non usus had to last thirty years, and in your case would not be completed until 2001. However, a new code was introduced in 1992. The non usus no longer appears in it. However, an easement can lapse by prescription if its exercise has been impossible for twenty years. If there is no question of the easement being blocked, but simply of a situation in which it is not used, it is possible to demand the termination of the easement with the court.