Easements and party walls: the Belgian Civil Code

Easement: what are we talking about?

According to the Civil Code, an easement is “a burden on an immovable property, called the servient property” (article 3.114). Notaire.be sums it up: it is a right established over one owner’s property for the benefit of another property. It is “attached to an immovable property and not to the owner of an immovable property”. It is active for the property that benefits from it and passive for the one that bears it.

The Civil Code classifies easements as apparent (those that make themselves known to a prudent and reasonable holder, article 3.115) and non-apparent. It provides two ways in which they arise (article 3.116): by law or by human act. Among easements created by human act:

• a legal act: all easements can be established by deed, for example in a notarial deed (article 3.117);
• acquisitive prescription, for apparent easements, under articles 3.26 and 3.27 (article 3.118);
• the owner’s allocation (destination du propriétaire): an easement arises when a single owner has divided their land while a link already existed between the parts (article 3.119).

Access for a landlocked plot

If a plot has no access to the public road, its owner can claim a right of way over the neighbours’ land (article 3.135). This right does not exist if the owner has an adjoining plot that is not landlocked. The judge sets the route of the passage so that it causes the least possible damage, with compensation (article 3.136). The right of way ends when it is no longer necessary (article 3.137).

Views, plantings and roots

Book 3 also governs everyday neighbour relations:

• Views (article 3.132): windows and terraces must be at a straight distance of at least 19 decimetres (1.90 m) from the boundary between the plots, with exceptions, for example 30 years of undisturbed existence.
• Plantings (article 3.133): a tree of 2 metres or more is planted 2 metres from the boundary, measured from the centre of the trunk. For other plantings, the distance is 0.5 m.
• Branches and roots (article 3.134): the neighbour can cut what overhangs “within sixty days of a formal notice sent by registered post”.
• Neighbour nuisance (article 3.101): each neighbour is liable for nuisance that exceeds “the measure of the normal inconveniences of neighbourhood”.

Party ownership: fences and walls

“Party ownership is a right of co-ownership of a dividing fence” (article 3.103). It can concern a wall, a hedge, a ditch, a palisade or wire fencing. The rules to know:

• Presumption of halves: each neighbour is presumed to be co-owner of one half (article 3.104).
• Fence on the boundary: fences built on the boundary, or straddling it, are presumed to be jointly owned (article 3.105). A wall is presumed to belong to the owner of the plot towards which its top slopes.
• Building a shared fence: each owner can require the neighbour to contribute to building it (article 3.106).
• Upkeep and repairs: the costs are borne by the co-owners, each according to their rights (article 3.112). A co-owner can escape major repairs by giving up their right of party ownership to the other.
• Raising a wall: a co-owner can have the party wall raised, at their own expense (article 3.111).
• Acting alone: each can carry out protective acts or acts of provisional management alone (article 3.110).

Notaire.be points out that, when the deed is silent, the Civil Code applies, with presumptions such as the one under which “any wall serving as a separation between buildings is presumed to be a party wall”.

How an easement ends

• Non-use for 30 years (article 3.126). Notaire.be gives the example of an old right of way not used for more than 30 years.
• Merger of the properties: the easement is extinguished when the servient property and the dominant property belong to the same owner (article 3.127).
• Loss of usefulness: the judge can order the removal of an easement that has lost all usefulness (article 3.128).
• Abandonment of the land: the owner of the servient property can abandon the land, or the part required, to the owner of the dominant property, with their agreement (article 3.122).

Before buying: the title deed

To find out whether a wall is a party wall or whether an easement exists, notaire.be advises consulting the title deed, and analysing it in detail before signing the sale agreement. Notarial deeds contain a clause: the buyer must respect all existing easements. If any doubt remains, ask the notary about the scope of these clauses. For the sale agreement, see the guide sale agreement. If the property is in co-ownership, the common parts follow other rules: see co-ownership and syndic.

The surveyor’s role

Boundary marking (bornage) fixes the boundary between two plots. According to the Ordre des géomètres-experts (the professional body of surveyors), “every owner has the right to have their land marked out”, and can call on any independent surveyor (géomètre-expert / landmeter-expert) entered on the Order’s roll as an active member, whatever their Region. The surveyor in charge of the assignment must invite the neighbours. An invited neighbour can ask for a copy of the boundary plan and check that it matches reality. If they want it checked by another surveyor, this is at their own expense.

A boundary plan does not replace the title deed: it specifies where the boundary runs, which matters for knowing where a fence stands. See the guide surveyor for the protected title and checking registration.

Which professional to consult

The notary reads the title deed and explains the easement clauses to you. The surveyor measures, marks the boundary and draws up the plan. We do not give personalised advice: a neighbour, a notary or a judge may read a specific situation differently.