Your land has no road access: the right of way

An easement is the limited real right burdening one plot, called the servient plot, for the benefit of another plot or of one or more persons. Where the relationship is between plots, the one receiving the benefit is the dominant plot. The Code distinguishes voluntary easements, created by agreement, from compulsory ones, whose creation can be demanded in the cases the law contemplates. The right of way is compulsory, alongside access to a general network, the aqueduct easement and the solar and wind ones. Other compulsory easements are governed by the special statutes authorising them.

It may be demanded by the holder of ownership or of possessory real rights over a plot with no exit or an insufficient exit to a public road. For access to a general network the condition is narrower: the easement is only demandable when connection to the network cannot be made elsewhere without disproportionate cost and when the harm caused is not substantial. And if the plot is co-owned, creating an easement over an undivided plot requires all co-owners’ consent; a grant by only some is suspended until the last one grants it, though it already binds the grantor and their successors not to prevent its completion.

• Holding ownership or possessory real rights over the dominant plot.Verified against the official source
• That the plot has no exit to a public road, or an exit insufficient for its normal use.Verified against the official source
• For access to a general network: that connection cannot be made elsewhere without disproportionate cost and that the harm is not substantial.Verified against the official source
• Paying the indemnity before it is established: the value of the affected part of the servient plot and repair of the harm. Except where the plot was landlocked by a division.Verified against the official source

• Your plot’s title and, if you can get them, the neighbouring plots’: the Code makes the easement’s content depend on the title, and the indemnity exception depends on whether your plot came from a larger original property.
• If created by agreement, the instrument creating it. Continuous non-apparent easements and discontinuous ones, apparent or not, can only be created by legal transaction.

1. 1

   Step 1: First find out where your plot came from

   This is the question that decides whether you pay. The Code provides that if a plot is left without exit to a public road, or without access to a general network or to water, as a consequence of disposing of one or more parts of the original property, or of dividing common property, the way or access must be obtained through the original property or the adjoining part coming from it, and no indemnity is owed, absent agreement otherwise. Translated: if your lot came out of a larger property that was split — an inheritance divided, a sale by parcels, a division among co-owners — the way is owed by the property you came from, and free. If instead your plot was always enclosed by neighbours unrelated to you, the general rule applies and an indemnity is due.

2. 2

   Step 2: Define the access you need, not the one you would prefer

   The Code measures the easement by the plot’s need, not the holder’s preference: of a width and character sufficient for the dominant plot’s normal use. And it fixes the route with a two-part rule: the right of way or network access must be given at the point least harmful or inconvenient to the servient plot and, if compatible, at the point most beneficial to the dominant one. The neighbour’s interest comes first in the equation; yours enters where the two are compatible.

3. 3

   Step 3: If you also lack power or water, ask in the same package

   The Code gives a separate easement for that: whoever lacks connection to a general sewerage network or a supplier of water, power, communications, new-technology services or others can demand access from their neighbours, with whatever overhead, surface or underground connections apply. Two useful details: if the network runs through the neighbouring plot, you can demand the easement by first paying the proportional share of the connection’s value that the servient holder once paid, in addition to the indemnity. And the neighbour may require that the access be arranged so they can use it too, provided they contribute proportionally to the connection costs; in that case both must contribute to maintenance in proportion to use.

4. 4

   Step 4: Try agreement; failing that, it goes to court

   The Code lists three ways to create an easement: by legal transaction entered voluntarily or compulsorily; by judgment, where the easement is compulsory and the person obliged refuses to grant it voluntarily; and by acquisitive prescription. That second route is your safety net: the neighbour’s refusal does not end the matter, it sends it to court. Note that prescription is not available for everything: continuous and apparent easements are created by transaction or by fifteen years’ prescription, but continuous non-apparent ones and discontinuous ones — and a way is discontinuous, since it is used at intervals and depends on human acts — can only be created by legal transaction.

5. 5

   Step 5: Know who pays for the works and who maintains them

   The dominant holder may carry out, at their own cost and on the servient plot, the works necessary for the easement’s use and upkeep, without altering it or making it more burdensome, choosing the time and manner causing the least possible inconvenience; the servient holder must tolerate partial occupation of the plot when necessary for those works. Costs fall on those who benefit, absent agreement otherwise. Where there are several dominant holders, all contribute in proportion to their benefit, and one who does not wish to contribute may be released by renouncing the easement in the others’ favour. And if the servient holder also derives some benefit, they must contribute proportionally.

6. 6

   Step 6: Use it, or lose it

   Easements are extinguished by fifteen years’ disuse, among other causes: expiry of the term or condition, extinction of the grantor’s right, renunciation by the dominant holder, agreed redemption, total loss of either plot, expropriation of the servient one, and the disappearance of all usefulness or the impossibility of use — and in that last case the Code adds that the easement is not restored if its exercise later becomes useful or possible again. One reassuring rule: an easement is not extinguished merely because both plots come into one person’s hands, though that sole holder may indeed extinguish it and have it cancelled in the registry.

First, with the neighbour: the easement can be created by agreement, and where it burdens real property it is best executed before a notary and recorded. If the person obliged refuses, the compulsory easement is created by judgment of the Court of First Instance. Recording is done at the Registro de la Propiedad.

• Believing access depends on the neighbour’s goodwill: it is a compulsory easement and, if they refuse, the court creates it by judgment.
• Offering or accepting payment when the plot was landlocked by splitting an original property: no indemnity is owed there.
• Claiming the route that suits you best: the Code requires giving it at the point least harmful to the servient plot.
• Assuming long use created the easement: a way is discontinuous and only arises by legal transaction.
• Asking only for the way when the power, water or communications connection is also missing: there is a network-access easement.
• Creating it with some co-owners’ signatures: over an undivided plot all must consent.
• Leaving it unused for more than 15 years: disuse extinguishes it.
• Carrying out works that alter the easement or make it more burdensome for the neighbour.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov