What is the prescription period for an easement of light and view?

Question

José Manuel Alburquerque · Accepted Answer

In Catalonia there is no period at all, because no easement can be acquired through the passage of time. A window or balcony that does not respect the required distances from the neighbouring property does not give the right to keep it, however many years it has been there, unless a title, such as a deed, has created the easement. Very old windows, predating the current code, may be a different case that is worth looking into. As long as the window remains open, the neighbour can ask for it to be closed up or adapted. What does become time-barred, three years after the neighbour learns of it, is the claim for compensation for any damage it causes them. Why there is no period in Catalonia The “Código Civil de Cataluña”, the Catalan Civil Code, says that easements only arise from a title, whether voluntary or compulsory. None is acquired by acquisitive prescription, which means gaining a right by having exercised it for the period laid down by law. The only compulsory easements the code provides for are the right of way, the easement of aqueduct and the easement of access to a mains network, such as water or sewerage. The easement of light and view is not one of them, so it only exists if it was agreed, normally in a deed, or if it was created by a will. The first step is to read the deeds of both properties and request a land registry extract (“nota simple”), the summary issued by the “Registro de la Propiedad”, the Land Registry, showing who owns the property and what charges it has. If there is no easement, the rules on distances between neighbours apply. As a general rule, to have a view or light over the neighbouring property, you must leave a space of at least one metre on your own land, measured at right angles from the wall or from the edge of the balcony, unless planning rules, municipal ordinances or local custom set a different width. A window in a wall adjoining the neighbour's wall must be at least forty centimetres from the property boundary. What the neighbour can ask for and within what time limit The affected neighbour has the “acción negatoria”, the claim that allows an owner to ask the court to stop an interference with their property. With it, they can require the window to be closed up or brought into line with the distances. As for the time limits: They can ask for this as long as the window remains open. The law only prevents them from doing so when the right has been gained by acquisitive prescription. Under the current code, that cannot happen with an easement. Having waited many years does not, in itself, make them lose that right. The claim for compensation for the damage becomes time-barred three years after they learn of the interference. They cannot ask for it if the window does not harm any legitimate interest of theirs or if they have to put up with it because the law says so or because it was agreed. Before bringing a claim, an attempt must generally be made to reach an agreement, for example with a written proposal or mediation. If the window predates the current code and it is argued that the right to have it had already been gained under the earlier laws, the case needs to be examined in the light of its own dates and documents. When it is lost and what happens under the Spanish Civil Code If the easement exists because it is recorded in a title, it is lost if it is not used for ten years. The ten years are counted from when there is evidence that it stopped being used, for example because the window was bricked up, or from when the owner of the other property did something that prevented its use. Under the Spanish Civil Code (“Código civil”), which applies in most of the rest of Spain, the easement of light and view can be acquired after twenty years. According to the courts, they are counted from when the window was opened if it is in a party wall or has a balcony projecting over the neighbouring property. If it is in the owner's own wall, they are counted from when the owner formally prohibited the neighbour from building in front of it.