Guide to Easement Rights for Right of Way and Parking

What is an Easement Right for Right of Way and Parking?

An easement right is a legal right that allows the owner of a property (rights holder) to use a portion of another person's property in a regular and defined manner for specific purposes such as right of way or parking. It is a real right attached to the property and passes to any future purchaser, unlike a private agreement between neighbors that does not bind the next buyer.

Under Israeli real estate law, an easement right is considered a burden on the property (servitude), meaning a right imposed on land or a building of one person for the benefit of land or a building of another person. In practice, this means that if you purchase an apartment or property that requires passage through a neighbor's land to access it, or needs a parking space on the neighbor's land, you can establish a registered easement in the land registry (Tabu).

This right is particularly essential in dense neighborhoods, urban renewal projects, and communities where properties are located close to each other. Without registering an easement right, you are dependent on the neighbor's goodwill or an unregistered agreement that does not bind future purchase of the property.

When is an Easement Right for Right of Way or Parking Necessary?

The need for an easement right arises in two main situations:

• Right of Way: When a property (apartment, house, land plot) is not adjacent to a public road or public access route, and access to it is only through private land of a neighbor or other owners. In this case, an easement right for right of way grants the property owner the legal right to use this route without requiring renewed consent from the landowner.
• Parking: When the property or building does not include its own parking space, or because the existing spaces are insufficient, and it is possible to arrange a fixed parking right on land of another person (often in an adjacent building or neighboring land plot).

In urban renewal projects, for example, there is often a shortage of parking spaces. In this case, the contractor or new residents may negotiate an easement right with owners of adjacent properties to secure a parking space.

Additionally, in certain circumstances, an older or existing property may not have included an easement registration from the outset, and now the property owner wishes to register such a right to legally protect themselves.

How is an Easement Right Registered?

Registration of an easement right is a formal legal process that requires coordination between the two parties and filing with the National Land Registry (Tabu). The following are the main steps:

Step 1: Agreement Between the Parties

In the first step, explicit agreement is required between the owner of the property being burdened (the property through which passage will occur or on which parking will be located) and the owner of the property benefiting from the easement (the property that will benefit from the right of way or parking). This agreement cannot be merely verbal—it must be in writing, typically in a commercial contract or easement registration agreement.

Step 2: Preparation of Legal Documents

An attorney or authorized legal entity prepares the required documents, including:

• An easement agreement clearly specifying: the location of the right of way or parking space, their size, the rights and obligations of each party, the duration of the easement (fixed or dependent on property ownership), and other conditions.
• A plan or sketch of the burdened property, marking the area allocated to the easement.
• Confirmation by both parties of the terms.

Step 3: Submission to the Land Registry

The agreement, together with the Tabu documents (Tabu extracts of both properties), is submitted to the National Land Registry. The registry examines the documents and confirms that they meet the legal requirements. In this process, corrections or clarifications may be necessary.

Step 4: Registration in the Land Registry

Following approval by the Land Registry, the easement right is registered in the Tabu of the burdened property (as a burden), and also in the Tabu of the benefiting property (as a right). From that point forward, the easement is registered and legally binding, and will bind any future purchaser of the properties.

It is important to note: this process requires close coordination between the parties and professional legal handling. Improper filing or missing documents may delay the process or result in rejection of the application.

Rights and Obligations in Easements (Zikат Hana'a)

An easement is not an unlimited right. It comes with clear rights and obligations that every property owner must understand:

Rights of the Property Owner Benefiting from the Easement (Right Holder)

• Right of Use: You are permitted to use the passage or parking space in accordance with the agreement terms, without requiring repeated consent from the other property owner.
• Right of Transfer: The right holder can transfer the easement to a future buyer of their property, allowing it to continue in effect.
• Legal Protection: If the other property owner attempts to block the passage or prevent use of the parking space, you may file a legal claim to protect your rights.

Obligations of the Property Owner Benefiting from the Easement

• Property Maintenance: You must maintain the passage or parking space in reasonable condition and not cause excessive damage to the burdened property owner's property.
• Cost Contributions: Under certain conditions, you may be required to contribute to maintenance or insurance costs of the burdened property.
• Reasonable Use: You must use the easement only for the purposes specified in the agreement (for example, ordinary passage or parking), and not for other uses.

Rights and Obligations of the Burdened Property Owner (Property Owner on Whom the Burden Falls)

• Property Right: The burdened property owner remains the owner of their property and can use it, as long as they do not violate the easement.
• Right to Payment: Under certain conditions, the burdened property owner may demand periodic or one-time payment for the easement (if specified in the agreement).
• Duty of Tolerance: The burdened property owner must permit the use of the easement and may not block it or unreasonably interfere with it.

Costs and Common Mistakes in Easements

Registration Costs for Easements

Costs associated with registering an easement include:

• Land Registry Fees: The Land Registry charges a fee for registering an easement, based on the value of the burdened property. The fee varies depending on the property's price range.
• Legal Costs: Attorney's fees for preparing the agreement, coordinating between parties, and filing documents with the Land Registry. These costs vary depending on the complexity of the matter and the attorney's rates.
• Searches and Inquiries: Land Registry searches or legal inquiries may be required to verify that there are no existing liens or prior rights on the property.
• Administrative Costs: Printing, postal, and other miscellaneous expenses.

Typically, easement registration costs range from hundreds to thousands of shekels, depending on the property size and legal arrangement. It is important to obtain a detailed quote from an attorney before beginning the process.

Common Mistakes to Avoid

1. Relying on Oral Agreements: Many property owners believe that an oral agreement with a neighbor is sufficient. This is a critical mistake. An oral agreement does not bind a future buyer, and the neighbor can deny its existence at any time. Without formal registration with the Land Registry, you face significant legal risk.

2. Failing to Clarify Agreement Terms: An easement agreement may be vague or lack essential details such as the size of the area, maintenance rights, or the duration of the easement. This can lead to future disputes. Every term must be clearly written in the agreement.

3. Proceeding Without Legal Counsel: Attempting to complete the registration process without the assistance of an experienced real estate attorney may result in errors in documents, rejection of the Land Registry application, or even an invalid easement. An attorney experienced in real estate law is essential.

4. Failing to Check the Land Registry Before Registration: Before registering an easement, the Land Registry records of both properties must be checked to ensure there are no prior rights or liens that could affect the new easement.

5. Failing to Clarify Maintenance Responsibility: One of the most common disputes in easements is who is responsible for maintaining and repairing the passage or parking space. This must be clear in the agreement.

6. Changing Terms Without Documentation: If the burdened property owner agrees to a change in easement terms (for example, expansion of the parking space), this must be documented in writing. Oral changes are not binding.

Easement Rights in the Context of Real Estate and Property Law

In Israeli property law, easement rights (זיקת הנאה) are considered one of the "real rights" registered in the land registry (Tabu). These rights have a permanent and real nature, in contrast to private agreements which are only binding between the parties who sign them.

When a property changes ownership, every easement registered on the property automatically transfers to the new owners. This means that if you purchased a house with a right of way easement and it was transferred to new owners, those owners are obligated to respect the easement.

An easement right differs from "building rights" or other "usage rights" that may be registered in the Tabu. It is also distinct from "mortgages" or "liens," which are financial encumbrances on the property.

In the context of urban renewal projects, easements for right of way and parking are a critical part of planning. The contractor must ensure that new residents have legal access to their properties and parking spaces. If this is not properly arranged from the beginning, serious legal issues may arise in the future.

Additionally, when purchasing a property, it is important to check the Tabu to determine whether there are easements "on" your property (meaning others can use part of your property) or easements "for the benefit of" your property (meaning you can use part of another property). Both situations affect the property's value and your rights as the owner.

Why Choose Mendelbaum, Gor, Witzman-Gor & Co. Attorneys?

In real estate transactions and disputes concerning easements for enjoyment, even a small mistake can lead to significant costs and serious legal issues. Our firm has over 18 years of experience in real estate and property law in Israel.

We specialize in representing claimants in tort law, as well as in civil-commercial real estate and property law. Our team is familiar with the complexities of registering easements for enjoyment, the requirements of the Registration Office, and disputes that may arise between property owners.

We offer:

• Professional legal advice: A thorough examination of your property, Tabu extract, and related rights to ensure you are legally protected.
• Accurate document preparation: Agreements, notices, and claims written with high legal precision.
• Efficient management: Managing processes at the Registration Office, coordinating between parties, and handling disputes.
• Personal and dedicated service: Every client is important to us, and we are committed to achieving the best solution for you.
• Free initial consultation: You can consult with us for free to understand your situation and your options.

If you need assistance with an easement for enjoyment, a real estate transaction, or a dispute with a neighbor, we are here to help.