A neighbor’s right of way, someone else’s water pipe in the ground, or the parents’ lifelong right of residence: Such rights are recorded in Section II of the Land Register and generally automatically pass to the buyer upon sale. This can be decisive for the price and marketability of your property. We explain what types of easements exist, how they differ from the public-law building encumbrance, and what you as the seller must disclose.
What is an easement?
An easement encumbers one property—the servient property—for the benefit of the respective owner of another property, the dominant property. The beneficiary may either use the servient property in specific ways (for example, as an access route), certain acts may be prohibited on the property, or the exercise of a right arising from ownership may be excluded (Section 1018 of the German Civil Code).
The key point when selling: An easement is attached to the property, not to a person. It remains in force if the owner of the servient or dominant property changes, and passes to the buyer without further action. It is recorded in Section II of the Land Register.
This must be distinguished from a limited personal easement (Section 1090 of the German Civil Code). It benefits not a property but a specific person or company, is generally non-transferable (Section 1092 of the German Civil Code), and usually expires upon the beneficiary’s death. The classic example is a right of residence.
These rights are found in Section II
Section II of the Land Register records all encumbrances and restrictions except liens on real property—these are recorded in Section III. The most common include:
- Right of way and right to drive: allows the beneficiary to walk or drive across the property—typical for landlocked properties without direct access to a public road.
- Utility easement: secures water, wastewater, gas, or electricity lines across the property. In favor of a utility provider, it is usually a limited personal easement.
- Right of residence (Section 1093 of the German Civil Code): the right to use a To occupy a building or part of a building as a dwelling, excluding the owner.
- Usufruct (§ 1030 German Civil Code): the comprehensive right to derive all benefits – the beneficiary may even rent out the property and retain the rent.
- Regulations on building closer to the boundary, encroachment, or boundary distances between neighboring properties.
The emergency access right (§ 917 German Civil Code), on the other hand, is not recorded in the land register: If a property lacks the connection to a public road necessary for proper use, the owner may demand that the neighbors tolerate an emergency access route in return for a monetary annuity. This is a statutory claim, not a registered right – and is therefore far less secure than a land-register-secured right of way.
Land easement or building encumbrance? The important difference
A common misunderstanding: Not every obligation relating to a property is recorded in the land register. Two worlds must be distinguished.
- The land easement is private-law. It arises through an agreement between the owners and registration in the land register.
- The building encumbrance is public-law. The owner undertakes toward the building supervisory authority to do, tolerate, or refrain from doing something. It is recorded in the building encumbrance register and is governed by the respective state building regulations, such as § 85 BauO NRW.
The practical consequence is important: Anyone who checks only an extract from the land register overlooks possible building encumbrances. Buyers should therefore always inspect both registers. One and the same access route may be secured both as a right of way in the land register and as an access building encumbrance in the building encumbrance register – or only in one of the two. Incidentally, the legal institution of the building encumbrance does not exist in Bavaria and Brandenburg; there, security is provided exclusively through land-register easements.
What easements mean for value and marketability
How much an easement reduces value depends on its type and scope. A utility easement along the edge of the property is hardly disruptive; a right of way across the garden or even a residential right can significantly reduce the price.
As a rule of thumb: The more the right restricts the owner’s use, the greater the discount. In the case of a residential right or usufruct, the value of the right is calculated specifically – based on the annual use or rental value multiplied by a capitalization factor based on the beneficiary’s statistical life expectancy (the basis is the mortality tables of the Federal Statistical Office). For a younger beneficiary, this capitalized value can account for a large portion of the market value – the property is then effectively difficult to sell.
Conversely, a right can also increase value: For the dominant property, a secured right of way is worth real money because it permanently secures access and development.
Your duties as a seller: disclose and notarize correctly
As a seller, you must disclose all encumbrances known to you – in the property exposé, but at the latest before the notarial appointment. If you fraudulently conceal an easement or building encumbrance that affects value, you may face claims for damages or rescission of the purchase.
Legally, a property is free of defects of title if third parties cannot assert any rights in relation to it, or only those rights assumed under the purchase agreement (Section 435 of the German Civil Code (BGB)). Easements assumed and clearly named in the contract are therefore unproblematic; a concealed encumbrance, by contrast, constitutes a defect. In practice, this means:
- Request an up-to-date land register extract early and read Section II in full.
- Clarify which rights the buyer assumes and which are to be deleted before handover.
- Have every continuing easement expressly included in the notarial purchase agreement.
Can an easement be deleted?
Yes, but not unilaterally. To terminate a property right, the beneficiary must declare that they relinquish the right, and it must be deleted from the land register (Section 875 of the German Civil Code (BGB)). In practice, this means: The beneficiary must issue a notarized consent to deletion – often only in return for compensation.
In the case of a limited personal easement such as a residential right, the right automatically ends upon the beneficiary’s death; deletion then takes place upon submission of the death certificate. During the beneficiary’s lifetime, however, their consent is mandatory.
FAQ on rights of way and easements
Can I sell a property with a right of way?
Yes. A right of way does not prevent the sale. Way, but it transfers to the buyer. Point this out early and name it in the purchase agreement; then it is legally properly regulated.
Do I have to state the right of way in the exposé?
Disclosures that affect value must be made. A right of way across the property influences the purchase decision and should therefore appear transparently in the listing and documents.
What is the difference between a right of way and an emergency access route?
The right of way is a secured right registered in the land register. The emergency access route (§ 917 BGB) is a statutory claim against compensation that only applies when there is no connection to a public road—and is significantly less certain.
Is a building encumbrance recorded in the land register?
No. Building encumbrances are recorded in the building encumbrance register of the building supervisory authority, not in the land register. When purchasing, therefore, always check both registers.
How much does a right of residence reduce the value?
That depends on the rental value and the beneficiary’s life expectancy. The capitalized value of the right of residence is deducted from the market value and can be very high for younger beneficiaries.
Advantages and disadvantages for sellers and buyers
- Advantage (seller): A secured right of way can increase the value of your property as the dominant property and permanently guarantee access and development.
- Advantage (buyer): Registered rights create clarity—anyone who checks Section II and the building encumbrance register knows exactly what they are committing to.
- Disadvantage (seller): Encumbering easements reduce the achievable price and restrict the pool of buyers.
- Disadvantage (buyer): Assumed rights remain in place and can often only be deleted against compensation to the beneficiary.
Conclusion: Transparency pays off
Easements in Section II are not an obstacle to selling, but they are a factor you must know and communicate openly. Check the land register extract early and—separately—the building encumbrance register, clarify which rights the buyer is assuming, and have everything properly recorded in the notarized purchase agreement. Anyone who transparently discloses rights of way, utility lines, or rights of residence sells faster, more securely, and without unpleasant surprises. When you subsequently list your property, complete information about existing rights builds trust among prospective buyers.