What rights does a right of way give? Can the land be fenced or a gate put in? When is it lost?

Question

José Manuel Alburquerque · Accepted Answer

A right of way gives the right to cross someone else's land where and how the title that created it says, normally a deed or a judgment. In Catalonia it can only arise from such a title, so having crossed the land for years does not give a right to keep doing so. The owner of the land crossed can fence it or put in a gate if this does not prevent or hinder passage, for example because they give a key to the holder of the right. The right of way is lost, among other reasons, if it is not used for ten years. What rights it gives The Catalan Civil Code says that easements only arise from a title, whether voluntary or compulsory. None is acquired by the passage of time. That is why the first step is to read the deed and obtain 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 (encumbrances) it carries, to see whether the right of way is recorded. On that basis: The holder can cross at the place and in the manner stated in the title. They must do so in the way that is most useful for their property and least troublesome for their neighbour's. They cannot widen the path or use it for more than the title allows. The works to build and maintain the path are paid for by the holder, unless the title says otherwise. If the passage is also useful to the owner of the land crossed, that owner contributes to the costs proportionately. If a property has no access to a public road, or the access it has is insufficient, its owner can require the neighbour to grant passage, paying them compensation. This is the compulsory easement. Under the Spanish Civil Code, which applies in most of the rest of Spain, a right of way cannot be acquired over the years either. Fencing or putting in a gate The Catalan code prohibits the owner of the land crossed from carrying out works that impair or hinder passage. Therefore: They can fence their land or put a gate across the path if the holder can continue to pass as before, for example because they give them a key or a remote control. They cannot block the passage, narrow it or put obstacles in it. If they do, the holder can require them to restore it to how it was and, if there is no agreement, sue them, after attempting to negotiate as the law requires. If the passage as it stands is excessively burdensome for them, they can ask for it to be moved or altered, at their own expense, provided the passage remains just as useful. The Spanish Civil Code also allows properties to be enclosed, but without prejudice to any easements over them. When it is lost Under the Catalan code, the easement is extinguished, among other reasons: If it is not used for ten years. The years are counted from when it is shown that it ceased to be used or from when the owner of the other property did something that prevented passage. So if your passage is blocked, do not let the years go by without making a claim. If one of the two properties is completely lost or if passage becomes impossible. In the latter case it does not revive even if passage later becomes possible again. For the reasons that extinguish any property right (“derecho real”), for example if the holder waives it. If the right of way is registered, removing it from the Land Registry requires the holder's agreement in a deed or a judgment. Whoever claims that it has not been used for ten years will have to prove it. Under the Spanish Civil Code, the period of non-use is twenty years.