Easements when selling your house: what do you need to disclose as a seller?

Easements when selling your house: what do you need to disclose as a seller?

An easement when selling a house is a right that a neighbour or a utility company holds over your plot, such as a right of way or a pipe running under your garden. That right stays in place when you sell. The buyer takes it over. That is why you need to disclose every easement you know about in advance. If you don't, you risk a dispute over damages after the deed, or even the sale being rescinded.

What exactly is an easement?

An easement is a burden on one plot for the benefit of another plot. So it is not an agreement between two people, but a link between two pieces of land. As a result, it automatically transfers with every sale, gift or inheritance. The plot that carries the burden is called the servient estate, the plot that benefits from it the dominant estate.

In Belgium, the rules have been set out since 1 September 2021 in Book 3 of the new Civil Code, which covers property. A few examples you often come across in Flanders:

• a right of way over your driveway or garden to a plot behind yours;
• a right of view, or on the contrary a ban on putting windows in a side wall;
• a neighbour's drainage pipe or sewer that runs under your land;
• a building ban or height restriction included in an old subdivision deed.

There are also public-law burdens, such as pipes and cables of network operators or restrictions from a spatial implementation plan. Legally they work differently, but to a buyer they feel the same: they limit what he can do with the property. For the sale, it is best to treat them the same way and disclose them all.

How does an easement arise, and why might you not know about it?

An easement can arise in several ways. The best known is a deed: a previous owner once agreed a right of way with the neighbour and had it recorded by the notary. Such a deed is registered with the General Administration of Patrimonial Documentation, the former mortgage office, so that later owners are bound by it too.

It can also arise through prescription, when a neighbour has exercised a right openly and for long enough, or through what is called the owner's designation. The latter often comes up with plots that once formed a single whole: the former owner laid a pipe or a path, split the plot and sold the parts separately. The path or pipe simply stayed in use.

That is exactly why a seller does not always know every burden on his home. An easement from a deed fifty years ago is not necessarily written out in your own purchase deed. Sometimes it only contains a reference to "the previous titles". So it pays to go through your title deed and the older deeds it refers to in advance, before you put the house on the market or choose an agent through our estate agent comparison.

What disclosure duty do you have as a seller?

As a seller, you must inform the buyer correctly about the condition of the property. That also applies to rights that third parties hold over your plot. Almost every sale agreement contains a standard clause in which the seller declares that he knows of no easements other than those mentioned in the deed. That sentence looks harmless, but it has consequences. If you knew about an easement and kept quiet about it, the buyer can later rely on that declaration.

The distinction between visible and non-visible burdens plays a role here. A paved track that clearly leads to the neighbours' plot is something a buyer can see for himself during a viewing. A pipe under the lawn or a building ban from an old deed is not. Your disclosure duty weighs most heavily for those hidden burdens. The logic is similar to that of hidden defects when selling a house: what the buyer could not reasonably notice and you did know, you have to put on the table.

In practice this means: mention every easement you know about in the sale agreement, with a short description and a reference to the deed that contains it. If you are unsure whether an old arrangement with the neighbours still applies, say so too. An honest statement such as "the seller is aware of a passage used by the neighbours, the legal basis of which is unknown" protects you better than silence.

What does the notary check, and what not?

When preparing the deed, the notary requests a mortgage certificate and reads through the previous title deeds. Easements recorded in registered deeds usually surface this way. They are then carried over into the deed of sale, so that the buyer expressly accepts them.

Still, that check has its limits. An easement that arose through prescription or through the owner's designation is not registered anywhere. The notary cannot find it in a register. He then depends on what you, as the seller, tell him. That is why he asks you questions about how the plot is used and expects complete answers.

The sale agreement is often drawn up before the notary has done all his searches. If you want to know how those two documents relate to each other, first read our article on the difference between the sale agreement and the deed. A good agent will preferably have the sale agreement checked by the notary before you sign, precisely so that points like these are not missed.

Does an easement affect the sale price?

That depends on the nature of the burden. A utility pipe along the edge of a large garden hardly bothers most buyers. A right of way straight through the garden, or a building ban that rules out a planned extension, does weigh on the price. Buyers factor that restriction into their offer, and some drop out.

There is no general percentage. The impact differs from house to house and from buyer to buyer. What is certain: a burden that only surfaces at the notary usually costs you more than one you mention straight away in the listing and the sale agreement. A buyer who feels misled renegotiates or walks away. A buyer who knew in advance has already priced the burden in.

So have the impact assessed by someone who knows the local market. A free valuation of your home gives you a first idea of its value, and a licensed agent can judge how buyers in your area react to a specific easement.

Can you have an easement removed before the sale?

Sometimes, yes. If the owner of the dominant estate agrees, you can have the easement cancelled by notarial deed. This often happens in return for compensation. If the easement has not been used for a long time, it may have lapsed through non-use. Whether that is the case depends on the specific facts and on the rules that apply to your situation. Have your notary or a lawyer assess it before you use it as an argument.

A third option is to describe the burden more precisely. An old, vaguely worded right of way can be clearly defined in a new deed with the neighbours: which strip, for whom, at what times. For a buyer, a clearly described restriction is far less off-putting than a vague one.

If you are weighing up which route suits you best, it helps to map out the sales strategy together with an agent. Through ImmoMakelaarVergelijker.be you can compare up to three licensed agents for free in your area, so you choose someone with experience of homes with a special legal situation.

In summary

An easement always transfers with the house. As a seller, you would do well to read through your title deed and the older deeds, mention every burden you know about in the sale agreement and name any doubts openly. The notary finds the registered easements, but not those that arose through use or prescription. What you disclose in advance rarely costs you much. What surfaces after the deed can cost you a lot more.