{"product_id":"vragen-57319-erfdienstbaarheid-en-zwaar-landbouwverkeer-ons-huis-en-het-agrarische-perceel-naast-ons-huis-van-ee","title":"Easement and agricultural traffic | Legal aid centre","description":"\u003ch4\u003e Questioner\u003c\/h4\u003e\n\n Easement and heavy agricultural traffic.\n Our house and the agricultural plot next to our house of a farmer are only accessible via our exit from the public road to our house. Since 1967 there is an easement on 'to come and go from and to the public road'. Nothing is mentioned in our deed of sale about maintenance and intensity of use.  \nThe plot was used as pasture for a long time. For 10 years now, it has been arable land where heavy agricultural machinery is used. Especially during the harvest, this involves large tractors and wagons with up to 40 tons of product that thunder over our exit dozens of times in succession. Our exit is not designed for this and is seriously polluted with clay from the arable land and is also run over. That is very burdensome for us. The farmer shrugs his shoulders, we are stuck with the mess. So we took a look at the text of the law.\n\n In BW 5 Title 6. Easements it is stated\n Article 74\n The exercise of the easement must take place in the manner that is least burdensome for the servient estate.\n\n Article 75\n 1 The owner of the dominant estate is authorised to perform, at his own expense, everything on the servient estate that is necessary for the exercise of the easement.\n \n2 He is also authorised, at his own expense, to erect on the servient property buildings, works and plantings that are necessary for the exercise of the easement.\n\n 3 He is obliged to maintain the property he has placed on the servient property, to the extent that this is necessary in the interests of the servient property; he is entitled to remove it, provided that he restores the property to its original condition.\n\n 4 The owner of the servient property has no right to use the buildings, works and plantings that have been lawfully placed there by the owner of the dominant property.\n\n The farmer and we have serious differences of opinion about the 'least onerous method'.\n\n We would like the farmer to make adjustments to our exit, so that the exit is resistant to heavy agricultural traffic. Article 75 points 1, 2 and 3 state that he may do this at his own expense.\n But how should we see point 4? If we have 'no right of use', we can no longer get to our house.\n\n\u003ch4\u003e Lawyer\u003c\/h4\u003e \nThe actual situation is of course important. Based on what you write I cannot judge what the actual situation is.\n\n Do you have situation photos?\n\n\u003ch4\u003e Lawyer\u003c\/h4\u003e \nThe manner in which an easement must be exercised is determined by the content of the deed of establishment; since nothing is stated therein, the easement must be exercised in the manner in which it has been done in good faith for several years (Article 5:73 paragraph 1 of the Dutch Civil Code). In this case, if I understand correctly, the easement was used for agricultural traffic for the benefit of livestock farming in the period from 1967 to 2007. Since there was a change in this use in 2007, there is an aggravation of the easement that does not need to be accepted. If you agree to the aggravation under the circumstances you have described, the agreements with the farmer regarding the adjustments to the road, the costs of maintenance and your own rights with regard to the use of the road must be recorded in an agreement that is then elaborated in a notarial deed containing a change of easement. If the farmer does not wish to cooperate, you can initiate proceedings to demand that the easement only be used in the manner in which it was used up to 10 years ago. If you do nothing, the current use (after 20 years) will be legalised by prescription. \n\n\u003ch4\u003eQuestioner\u003c\/h4\u003e\n\n Thank you very much for the responses.\n I am concerned with the meaning of the legal texts.\n The farmer and we have serious differences of opinion about 'the manner that is least burdensome for the servient property'.\n What I should do with 'The owner of the servient property has no right to use the buildings, works and plantings that have been lawfully placed there by the owner of the dominant property.' is completely unclear.\n\n I can send Mr Albersen photos and a situation sketch, but that does not make the text of the law any clearer. The actual situation is that neither our house nor the farmer's arable land are accessible via the public road, but only via a 300-metre-long exit from the public road to our house. The exit and the house are approximately 200 years old. The exit has been paved with rubble for years, but the subsoil is clay and it cannot withstand the high axle load of heavy agricultural traffic, especially in wet weather.\n \nMr Steijns calls the change of use from pasture to arable land 'an aggravation of the easement that need not be accepted'. We agree, but the farmer does not. We definitely do not want to let that situation continue until prescription applies after 20 years.\n How can we start a 'procedure' without it costing us a fortune in legal costs? We do not have legal expenses insurance and it is no longer possible to take it out for this. Can we unilaterally have a deed drawn up by a notary and have the contact with the farmer (and his lawyer) go through the notary? \nNo matter how badly the exit is driven, those heavy agricultural machines can always get over it. There is no alternative access to the arable land and our house. The farmer could try to buy a strip of land from third parties and arrange that strip in such a way that he can use it as access to his arable land. Incidentally, that does not invalidate the easement on our exit. It also costs the farmer a lot of money and he does not want that. He sees no need for a change.\n \nThe easement cannot be lifted. The farmer's plot is approximately 5 ha in size and has an agricultural destination, the nature of the destination - pasture or arable land - is not mentioned. Converting it back to pasture is no longer profitable. We must grant passage at all times, even if that results in our exit being destroyed. The agricultural interest seems to weigh more heavily than our interest in being able to use our exit every day without having to wade through the mud. The farmer is not bothered by the fact that this is a burden for us.\n In the rural areas of the Netherlands there must be many more of these situations! Isn't there case law on this?\n\n\u003ch4\u003e Lawyer\u003c\/h4\u003e\n\n It is not just about the text of the law, but also about the actual situation. Is the route that is now being taken really the shortest route?\n\n Are there buildings, works and plantings on the road? If not, this legal provision does not apply.\n \nBased on the local situation, which is known to you but not to me.\n\n As far as I understand, no easement has been placed on the agricultural plot.\n\n The fact that heavy agricultural machinery is now being used on the road in question does not, from a legal point of view, constitute an increase in the easement.\n\n If the road is soiled and damaged, the person who caused it will also have to repair it.\n\n I would like to study this case further\n\n\u003ch4\u003e Questioner\u003c\/h4\u003e\n\n Two lawyers, two opinions:\n\n Since there has been a change in this usage in 2007, the easement has been increased which does not need to be accepted.\n\n The fact that heavy agricultural machinery is now being used on the road in question does not, from a legal point of view, constitute an increase in the easement.\n\n\u003ch4\u003e Lawyer\u003c\/h4\u003e \nOf course, it is not the intention to have discussions here, but a change of destination of the dominant property can certainly result in an increase in the easement, which is certainly the case here in my opinion. If the parties disagree on this, it is ultimately up to the judge to assess this. Incidentally, in the case of an easement, it is not important whether there is the shortest route, that only plays a role if there is an emergency route.\n\n To avoid high costs, you should indeed try to reach an agreement between yourselves and have clear agreements recorded in a notarial deed. If desired, my office can take care of that for you.\n \nIf the provisions applicable to an easement state that the person entitled to the dominant property must construct buildings, works or plantings on the servient property, then the owner of the servient property does not have the right to use them. This does not apply here because this is not included in the deed of establishment.\n\n","brand":"Rechtswinkel.nl","offers":[{"title":"Default Title","offer_id":55005531341149,"sku":"","price":0.0,"currency_code":"EUR","in_stock":true}],"url":"https:\/\/www.rechtswinkel.nl\/en\/products\/vragen-57319-erfdienstbaarheid-en-zwaar-landbouwverkeer-ons-huis-en-het-agrarische-perceel-naast-ons-huis-van-ee","provider":"Rechtswinkel.nl","version":"1.0","type":"link"}