Easements and limited real rights

Under Swiss law, ownership confers on its holder the most extensive control over an asset (art. 641 CC). But alongside it there exists a category of rights that bear on another person's property while conferring on their holder a right enforceable against all: limited real rights. These rights are distinguished from simple personal rights (obligations, claims) in that they are absolute — they apply erga omnes — and that they are registered in the land register when they relate to real property.

Swiss law is governed by the numerus clausus principle of real rights: only the types of real rights provided by law may be created; the parties cannot create new ones at will. Limited real rights over immovable property are divided into three categories: easements (art. 730-781 CC), real burdens (art. 782-792 CC) and mortgages (art. 793-875 CC), in particular the mortgage certificate. This page focuses on easements.

Predial easements (art. 730-744 CC)

A predial easement is a real right that encumbers a property — called the servient tenement — for the benefit of the owner of another property — called the dominant tenement (art. 730 al. 1 CC). The easement is attached to the properties and not to the persons who own them: it is automatically transferred with the ownership of each tenement upon alienation.

Definition and content

The owner of the servient tenement is obliged to tolerate certain acts by the owner of the dominant tenement, or to refrain from exercising certain rights inherent in ownership (art. 730 al. 1 CC). The easement may therefore consist of:

• a positive easement (servitus in patiendo): the owner of the servient tenement tolerates acts by the holder of the dominant tenement (e.g. right of way, right of conduit, right of view)
• a negative easement (servitus in non faciendo): the owner of the servient tenement refrains from exercising a right that would normally belong to them (e.g. prohibition on building beyond a certain height)

A predial easement cannot, however, oblige the owner of the servient tenement to do something (art. 730 al. 2 CC), except in the cases expressly provided by law or where this results accessorily from the main obligation.

Creation of predial easements

The creation of a predial easement requires (art. 731-732 CC):

1. A valid title of acquisition: in principle a public deed drawn up before a notary (art. 732 al. 1 CC). An easement may also result from a judgment or from acquisition by prescription (art. 731 al. 2-3 CC).
2. Registration in the land register, which is constitutive: the easement comes into existence as a real right at the time of registration, and not at the time of conclusion of the contract (art. 731 al. 1 CC in conjunction with art. 972 CC).

Scope and exercise

The easement is exercised in accordance with its title and, in case of doubt, in accordance with the natural purpose of the dominant tenement (art. 737 CC). The owner of the dominant tenement must exercise their right with due consideration for the servient tenement; the owner of the servient tenement may not hinder the exercise by any act (art. 737 al. 2-3 CC). If the easement involves works serving its exercise, it is in principle the owner of the dominant tenement who bears the maintenance costs (art. 741 CC).

Extinction of predial easements

Predial easements are extinguished in particular by (art. 734-736 CC):

• Cancellation in the land register on the basis of an agreement between the owners of both tenements (art. 734 CC)
• Confusion: merger of both tenements into one hand (art. 735 CC) — the easement subsists in the event of subsequent division if it has been maintained in the land register
• Disappearance of utility: the court may order the cancellation of the easement when it has lost all utility for the dominant tenement (art. 736 al. 1 CC)
• Disproportionate burden: the easement may be judicially cancelled or modified when it presents only minimal utility relative to the burden imposed on the servient tenement (art. 736 al. 2 CC)

Personal easements (art. 745-781 CC)

Personal easements are limited real rights established in favour of a specific person, and not in favour of a dominant tenement. They include usufruct, the right of habitation, the right of superficies and other atypical personal easements.

Usufruct (art. 745-775 CC)

Usufruct confers on its holder the right to fully enjoy a thing or a right belonging to another, on the condition of preserving its substance (art. 745 al. 1 CC). The usufructuary has the right to use the thing, to collect its fruits and revenues, and may delegate the exercise (but not the right itself) to a third party. They bear the ordinary maintenance costs and must preserve the economic purpose of the asset (art. 764 CC).

Usufruct may relate to movable things, immovable property, claims or an entire estate. For immovable property, a public deed and registration in the land register are required (art. 746 al. 2 CC). Usufruct is non-transferable and personal: it is at most for life for natural persons and limited to 100 years for legal entities (art. 749 CC).

Right of habitation (art. 776-778 CC)

The right of habitation is a personal easement that confers on its holder the right to inhabit a building or part of a building (art. 776 al. 1 CC). It is subject, within the limits of its scope, to the rules applicable to usufruct. It differs from usufruct on several essential points:

• It is strictly non-transferable and may not be leased to third parties (art. 776 al. 2 CC)
• The holder may only exercise it for their own needs and those of their family members (art. 777 CC)
• It expires at the latest upon the death of the holder (art. 778 al. 2 CC)

The right of habitation is frequently created in the context of successions or donations between spouses, in order to allow the surviving spouse to remain in the family home.

Right of superficies (art. 779-779l CC)

The right of superficies is a personal easement that confers on its holder (the superficiary) the right to have or erect constructions, either on another person's land or below it (art. 779 al. 1 CC). It may be constituted as a distinct and permanent right (DDP) and registered in the land register as an immovable, which allows it to be mortgaged independently of the land.

Key features of the right of superficies:

• Maximum duration: 100 years (art. 779l CC); it may be renewed
• Ground rent: the superficiary in principle pays an annual rent to the landowner (art. 779a CC)
• Reversion of constructions: upon expiry of the right, the constructions revert to the landowner, who must pay fair compensation (art. 779c CC)
• Early termination: in the event of serious abuse of the right, the landowner may apply for judicial termination (art. 779f-779g CC)

Other personal easements (art. 781 CC)

Art. 781 CC allows the creation of other personal easements over immovable property, in favour of a person or a community, to the extent permitted by law. These unnamed easements are subject to the rules applicable to predial easements. They allow in particular the arrangement of limited rights of use (right to draw water, right of passage for livestock, etc.) that do not correspond to any of the legally defined categories.

The different limited real rights over immovable property

Creation and registration in the land register

For limited real rights relating to immovable property, registration in the land register is in principle constitutive: the real right comes into existence at the time of registration (art. 972 al. 1 CC). This rule applies to predial easements (art. 731 CC), usufruct over real property (art. 746 CC), the right of habitation and the right of superficies. Prior to registration, only an obligatory relationship exists between the parties.

The procedure is as follows:

1. Public deed: the title of acquisition must be drawn up before a notary in the competent canton. The notary drafts the deed and submits it to the parties for signature.
2. Application for registration: the notary or the parties file with the competent land register (determined by the location of the property) an application accompanied by supporting documents.
3. Registration: the land registrar proceeds with registration in the main register. The easement appears in the folio of the servient tenement (and of the dominant tenement for a predial easement).
4. Notification: the parties receive an extract from the land register attesting to the registration.

The content of the registration must be sufficiently precise to delimit the right. For predial easements, a plan of the easement may be annexed to delimit geographically the passage or use concerned.

Extinction of easements

The grounds for extinction vary according to the nature of the easement:

Extinction of predial easements (art. 734-736 CC)

• Agreement and cancellation: both owners agree to extinguish the easement, and an application for cancellation is filed at the land register (art. 734 CC)
• Confusion: when the servient and dominant tenements belong to the same owner, the easement is extinguished — it subsists, however, if it has been maintained in the land register in anticipation of a future alienation (art. 735 CC)
• Term or resolutory condition provided in the constitutive title
• Court order: see below (art. 736 CC)

Extinction of personal easements

• Usufruct is extinguished upon the death of the usufructuary or upon expiry of the term (art. 748-749 CC); for legal entities, at the latest after 100 years
• The right of habitation is extinguished upon the death of the holder or upon expiry of the term (art. 778 al. 2 CC)
• The right of superficies is extinguished upon expiry of the term, by early termination or by confusion (art. 779b-779g CC)

In all cases, extinction must be followed by cancellation in the land register in order to clear the property folio. This cancellation is not constitutive for the extinction of the right (the right is already extinguished), but it is essential to restore full unencumbered ownership.

Judicial modification and cancellation (art. 736 CC)

When a predial easement has lost all utility for the dominant tenement, the owner of the servient tenement may apply for its cancellation in the land register (art. 736 al. 1 CC). The owner of the dominant tenement may only oppose this if they can demonstrate a still current interest in the easement.

An analogous rule applies when the disproportion between the utility of the easement for the dominant tenement and the burden it represents for the servient tenement has become manifest: the court may then order the cancellation or modification of the easement with compensation (art. 736 al. 2 CC). This judicial action requires that circumstances have changed since the creation of the easement in such a way that maintaining it in full would be contrary to equity.

The proceedings fall within the jurisdiction of the ordinary civil court of the place where the property is situated. The decision, once final, provides the basis for cancellation in the land register.

Mortgage certificate and real property securities

Real property securities — mortgage (art. 793-822 CC) and mortgage certificate (art. 842-865 CC) — are also limited real rights over immovable property, but they do not belong to the category of easements. Their function is to secure a claim by encumbering real property. The mortgage certificate is today the most frequently used real property security instrument in Switzerland.

These instruments are dealt with on a specific page to which we refer you. PBM Avocats regularly advises its clients on the creation, modification and enforcement of real property securities in the context of real estate transactions and financing.

Frequently asked questions on easements under Swiss law