What a servidumbre (easement) is
The Código Civil (Civil Code; Gaceta Oficial No. 2.990 Extraordinario, July 26, 1982) defines the servidumbre predial (easement between properties) as "cualquier gravamen impuesto sobre un predio para uso y utilidad de otro perteneciente a distinto dueño" (any encumbrance imposed on a property for the use and benefit of another belonging to a different owner) (art. 709). There are two plots: the predio sirviente (servient estate), which bears the burden, and the predio dominante (dominant estate), which benefits. The title that created it sets how it is exercised and how far it extends; in the absence of a title, the rules of the Code apply.
The Code classifies easements in two ways:
Continuous or discontinuous (art. 710). The servidumbre de paso (right of way) is discontinuous: the article gives it as an example of those that "tienen necesidad del hecho actual del hombre para su ejercicio" (need a present act of a person in order to be exercised).
Apparent or non-apparent (art. 711). Apparent ones are those that "se muestran por señales visibles, como una puerta, una ventana, un acueducto" (show themselves through visible signs, such as a door, a window, an aqueduct). Non-apparent ones are those not indicated by any visible sign.Whether it is apparent or not changes the time periods explained below.
The legal right of way for a landlocked plot
Article 660 gives the owner of a plot "enclavado entre otros ajenos, y que no tenga salida a la vía pública, o que no pueda procurársela sin excesivo gasto e incomodidad" (enclosed among plots belonging to others, with no exit to the public road, or unable to obtain one without excessive expense and inconvenience) the right to demand passage through the neighboring plots. The Code places it among the legal limitations on land ownership. Its rules:
Compensation. Compensation "equivalente al perjuicio sufrido" (equivalent to the harm suffered) is always owed (art. 660). The same article can apply to someone who already has a right of way and needs to widen the path for vehicles, also with compensation.
Where. The passage is granted "por el punto menos perjudicial" (at the least harmful point) to the plot that bears it and, as far as possible, where the distance to the public road is shortest (art. 661).
Who can move it. Whoever obtained the passage cannot change its location. The owner of the predio sirviente can relocate it, provided the other owner keeps the same ease of access (art. 662).
Landlocked by sale or division. If a plot becomes enclosed on all sides through a division, sale, exchange or other contract, those who transferred it must provide the passage "sin indemnización alguna" (without any compensation) (art. 663).
When it is no longer necessary. If the passage is no longer necessary because the plot is joined to another or a new road is opened, the owner of the servient plot can ask for it to be removed, returning the compensation (art. 664).
The action for compensation prescribes, but the passage obtained does not end because of that (art. 665).If the neighbor refuses, a judge decides. In 2009, a municipal court in Caracas held that it was improper to create a servidumbre de paso through a justificativo de testigos (sworn witness statement) and pointed, in principle, to an action to establish the easement through the ordinary proceeding as the route. To sue for or negotiate the passage, consult a lawyer.
How an easement arises and how it ends
| Mode | What the Código Civil requires | Articles |
|---|
| Title | An act that creates it, for example a contract between the owners; the title sets its extent | 709, 720 |
| Prescription | Legitimate possession for the legal period; the starting point depends on whether it is apparent | 720, 1.953 |
| Destinación del padre de familia (arrangement by the common owner) | Apparent easements only: two plots of the same owner, who left things in the state from which the easement results, and which are later separated | 721 |
| Law (landlocked plot) | No exit to the public road, and compensation | 660 to 665 |
Prescription. Article 720 allows it for every kind of easement and sets when possession starts to count: for apparent ones, from when the owner of the predio dominante began exercising them; for non-apparent ones, from when that owner "manifieste por escrito" (states in writing) their claim to the owner of the predio sirviente. The article does not set any period. A municipal court in Mérida, in a 2014 interlocutory decision, said the period is twenty years, citing the general period for real actions (art. 1.977), and legal scholarship applies the general rules of usucapión (adverse possession) to easements. We did not find a judgment of the Tribunal Supremo de Justicia (TSJ, the Supreme Court) that sets the period: it is not a settled criterion. For prescription to be declared, a lawsuit is needed against everyone the Registro (public registry) shows as owners or holders of real rights (Código de Procedimiento Civil, the Code of Civil Procedure, arts. 690 and 691).
Extinction. The Code provides, among other causes:
Non-use for twenty years (art. 752). For apparent easements the period runs from when they stopped being used; for non-apparent ones, from when an act contrary to the easement was carried out.
The merger of both plots in a single owner (art. 750).
Things reaching a state that makes its use impossible (art. 748). It revives if they are restored before the extinction period is completed (art. 749).Article 758 extends these rules, as far as applicable, to legal limitations such as the passage of article 660.
Why it must be registered
Article 1.920 num. 2 of the Código Civil requires registration of "los actos entre vivos que constituyan o modifiquen servidumbres prediales" (acts between living persons that create or modify easements between properties), and num. 3, of renunciations of them. Under article 1.924, acts subject to registration that are not registered "no tienen ningún efecto contra terceros" (have no effect against third parties) who have lawfully acquired and kept rights over the property. In practice: a right of way agreed on a private paper may not hold against whoever later buys the neighboring plot.
The Ley de Registros y Notarías (Registries and Notaries Law; Gaceta Oficial No. 6.668 Extraordinario, December 16, 2021) includes in the Registro Público, art. 46 num. 3, the contracts, settlements and final judgments that establish easement rights over properties. A private document is registered only if the signatures were authenticated or verified in court (Código Civil, art. 1.923).
How it appears in the deed and in the certificación de gravámenes (lien certificate)
In the property document. The Ley de Registros y Notarías (art. 48 num. 4) requires every entry relating to a property to contain "los gravámenes, cargas y limitaciones legales que pesen sobre el derecho que se inscriba" (the liens, charges and legal limitations that weigh on the right being recorded). Read the liens clause and the boundary description in the seller's document.
In its own document. If the easement was agreed and registered, that registered act states the location of the passage, its width and the compensation, if these were agreed.
Marginal notes. When a right is renounced, extinguished or modified, the Registro places a note in the margin of the document that created it (Código Civil, art. 1.926).
In the certificate. The registrar issues certificates on the recorded acts, "propietarios, gravámenes, negativas registrales, cargas legales y demás datos" (owners, liens, registry negative records, legal charges and other data) (Ley de Registros y Notarías, art. 40). When you request it, ask that it state whether there are easements in favor of or against the plot. See how to request it in the guide on the certificación de gravámenes.The certificate shows only what is registered. A tolerated passage without a document, a legal right of way never formalized or an easement acquired by prescription without a judgment does not appear in it.
Checklist for the buyer
Visit the plot and look for paths, gates or signs that neighbors pass through.
Confirm the exit to the public road. If access crosses someone else's land, ask for the registered document of the easement. Without it, the passage depends on the neighbor's tolerance or on a lawsuit.
Request the certificación de gravámenes and read the marginal notes on the documents.
If the lot comes from a division made by the seller and is enclosed on all sides, article 663 obliges the seller to provide the passage without compensation. Ask for it to be stated in the registered sale.
If the neighboring plot has several owners (for example, an undivided inheritance), the easement is effective only when all of them grant it (art. 723).
If you are buying the servient plot, ask who passes through and under what title. An unregistered agreement has no effect against you as a third party (art. 1.924). In our reading, which you should confirm with a lawyer, the owner of a landlocked plot could still demand from you the legal right of way of article 660, because that right arises from the law and not from the agreement.
Hidden easements. If there are undeclared non-apparent easements so significant that you would not have bought, you can ask for termination of the sale or for compensation (art. 1.515). See vicios ocultos y saneamiento (hidden defects and the seller's warranty).