Easement in General:
Easement is a limited real right that provides the right owner with the right to use or benefit from the property, or both. Easements are given various names, such as Usufruct Right, Superstructure (Construction) Right, Resource Easement, Passage Easement, depending on the utilization authority they provide. Since the easement right is a real right, it is recorded in the land registry and is public. Article 780 of the Civil Code states the principle that "Registration in the land registry is a must for the establishment of easement rights", and a similar provision is included in Article 795 of the Civil Code for usufruct rights. According to our Civil Code, usufruct right is also included in the concept of easement, but it also finds special regulation in the Civil Code.
The easement right can be granted to a specific person or in favor of another immovable property. According to the law, only usufruct and residence rights can be assigned to a specific person. It is not possible to transfer individual easement rights to anyone else or pass them on to heirs. In general, all easement rights (including usufruct rights) can be assigned in favor of another real estate, therefore, as the owner of the real estate changes, the new owner will continue to benefit from this right. According to our law, the immovable property on which an easement is imposed is called "encumbered immovable", and the immovable property in whose favor an easement is established is called "beneficiary immovable".
Registration of easement right:
For easement registration, a formal easement agreement must be made. The easement right registered in this way is valid between the parties and is effective against third parties in accordance with the principle of real rights. In practice, only residence rights are granted on an individual basis, while usufruct rights are generally granted in favor of the real estate. For this reason, in this article we will examine the cancellation of easement rights granted in favor of real estate.
Termination of easement right:
The termination of the easement right is limited to:
- Don't end with abandonment;
- Termination with the destruction of the burdened or beneficiary immovable property;
- Termination with the expropriation of the encumbered immovable property;
- Termination upon expiration of the term;
- Termination by court decision
Easement right is possible by canceling the registration in the land registry in accordance with Article 783 of the Turkish Civil Code. Abandonment is possible upon written cancellation request of the beneficiary real estate owner. Apart from this, the easement right disappears if the immovable property that is loaded or benefited from is destroyed. Easement rights come to an end with expropriation practices, which are frequently encountered in our country. As a result of expropriation, ownership ends and therefore the easement right also ends. If the easement right has been established for a certain period of time, the easement right will expire after this period has passed. At the end of the relevant period, the owner of the loaded immovable property can cancel it by applying to the title deed. Finally, if there is a valid reason, it is also possible to terminate the easement right by court decision upon the request of the loaded immovable property.
- Termination by court decision:
In order for the easement to be abolished by court decision, the benefit provided by the easement must disappear or decrease tremendously and provide very little benefit. As stated in the article, the easement creates a burden on the real estate. For example, in years when the sewer system is not functioning properly, it is possible for a real estate to grant an easement to another real estate to provide a septic tank to implement this purpose. However, if this need disappears with developing technology and infrastructure opportunities, the owner of the loaded real estate will be able to request the cancellation of this easement right from the court. Similarly, if coal is used as a heating method, an easement right granted to store coal will no longer be applicable after switching to a natural gas system, and this right may be requested to be removed through the court.
“Benefit” criterion regarding easement
Since the court's decision to remove the easement is determined according to the "benefit" criterion, the owner of the loaded immovable property must prove that there is no interest worth legally protecting. Monetary increase is not a determining factor in determining the interest worth legally protecting, it is evaluated by the judge subjectively for each case. In this regard, especially if the purpose of establishing the easement and the way of using it cannot be understood from the registration, it will be necessary to look at the easement agreement that constitutes the reason for acquisition.
Purpose of being included in the benefit criteria:
Since the registration in the registry is determined by the land registry officers in practice, there may be a situation where the easement agreement and the registration in the land registry do not match. It is possible to correct the record in the land registry if the parties agree. However, even if there is no mutual agreement, the land registry officer must apply to the court and request the correction of the land registry. If the land registry officer does not file a lawsuit, the requesting owner has the opportunity to request correction of the title deed record.
The Civil Code has accepted that the easement attached to the property must be established for the purpose of meeting the needs of the beneficiary immovable property, and has deemed it useful for establishing the easement right, even though the needs of the property constitute a benefit worthy of protection. Depending on the purpose for which the easement is allocated, the needs of the benefiting property become important in determining the extent of use of the easement. Within the framework of this purpose, the owner of the immovable property will be responsible for the easement to meet the new needs. Therefore, if the owner of the loaded immovable property has not objected to the use of the easement in a certain way for a long time, the easement right can be determined accordingly. However, the intended use is possible within the limits of registration in the land registry. Therefore, if the scope of the easement can be determined based on the reason for registration and acquisition, any use that is contrary to or exceeds this scope will not be taken into account in the interpretation.
Deciding to abolish the easement right:
If the court decides to abolish the easement, it will decide in accordance with MK 785. Accordingly, if it is determined that the benefit provided by the easement right has been eliminated, the easement right will be abolished. If the benefit has not been eliminated but it is determined that the benefit has decreased against the burden, this right will be partially or completely abolished by determining an appropriate price in accordance with Article 78/2 of the Turkish Civil Code. In this case, the court will appoint an expert, and the expert will determine the value of the relevant easement from precedent values and municipal and real estate tax records. Considering the value determined by the expert, cancellation will be provided in exchange for a court fee.
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