The Easement in the Light of the Egyptian Civil Code and the Civil Transactions Law

The easement

Article 1015 of the Egyptian Civil Code defines it as "a right limiting the enjoyment of one immovable for the benefit of another belonging to a different person", and further provides that "an easement may be constituted over public property where it does not conflict with the use to which that property is appropriated". Article 699 of the Civil Transactions Law issued in the Kingdom of Saudi Arabia defines it as "a real right established for the benefit of an immovable, held by a person over an immovable owned by another".

An easement is thus a real right over land, established for the benefit of one immovable over another. The original owner sets up two immovables, one serving the other, so that this dependence has a determinate economic office, which passes with the ownership of the two immovables. The first is called the dominant tenement, the second the servient tenement. The first limits the enjoyment of the second, or charges it with a burden for its own benefit.

An easement may consist in a right of way, of water, or of drainage. On this the Administrative Circuit of the Board of Grievances held, in case 2141 of 1430 on appeal in case 1202 of 1435, that "the right of drainage and the right of watercourse are among the easements that must be given effect". An easement follows the dominant tenement and is among its accessories on a disposition of it, passing with it to the transferee without need of mention in the contract. Its importance appears where ownership of the two immovables passes to two different persons while both remain in their existing state, the original relation of dependence continuing as it was. The owner of the first, though he does not deprive the second of his ownership, diminishes its compass: he prevents him from carrying out on his land acts he would have been entitled to carry out but for the easement. He is likewise bound not to impair the easement in exercising his rights of ownership, so as not to obstruct or diminish its use or render it more burdensome. Cassation, 10 May 1977, appeal 724.

The test distinguishing an easement as a real right from a personal right is whether the burden on the immovable is established for the benefit of an immovable, in which case it is an easement, or for the benefit of a person by contract, in which case it creates a personal right only. So the Egyptian Court of Cassation has held. Cassation, 13 December 1978, appeal 431.

Acquiring an easement

Article 1016 of the Egyptian Civil Code provides that "an easement is acquired by a legal act or by inheritance, and only apparent easements, including a right of way, may be acquired by prescription". The Civil Transactions Law provides that "an easement is acquired by statutory disposition or by inheritance", without laying down any rule on prescription in that article.

A legal disposition may therefore create an easement under both the Egyptian Civil Code and the Civil Transactions Law. That disposition may be a contract of sale whose object is the easement, the owner of the servient tenement constituting an easement for the benefit of the dominant one, the former being seller and the latter buyer, bound to pay the price agreed, failing which the seller may bar him from passage on the strength of his right of retention. It may equally be a gift, a bequest, an exchange, or any other form of legal disposition. An easement is likewise acquired by inheritance under both the Egyptian Civil Code and the Civil Transactions Law. So the practice of the Court of Cassation has held: "individuals may agree to create such easements as they choose, whether positive or negative, provided they remain within the bounds of the law, public order and morals". Cassation, 10 May 1977, vol. 28.

Acquisition of an easement by prescription is provided for in the Egyptian Civil Code but not in the Civil Transactions Law. Acquisition by prescription requires the easement to be apparent; where it is not apparent, as with an easement not to build higher, prescription does not run upon it. Apparency in its particular sense must also be present. An easement of way is apparent in the general sense where a person passes openly over his neighbour's land; but the law is not content with that and requires apparency in its particular sense, namely that the way have visible marks. For the remaining easements the law is content with apparency in the general sense, so long as it is continuous — as with easements of prospect, of water, of watercourse and of drainage. Possession must also be present in both its material and its moral element, and must continue for fifteen years.

Constituting an easement by destination of the original owner

The original owner may constitute an easement. Article 1017 of the Egyptian Civil Code provides that "apparent easements may also be constituted by destination of the original owner. There is destination by the original owner where it appears by any means of proof that the owner of two separate immovables set up between them a visible mark, thereby creating a relation of dependence between them such as would indicate an easement had the two immovables belonged to different owners. In that case, where the two immovables pass into the hands of different owners without change in their state, the easement is treated as constituted between them, for and against them, unless there is an express term to the contrary."

The Civil Transactions Law likewise provides for the original owner's right to constitute an easement by destination: "where the owner of two separate immovables creates an apparent easement between them, the right subsists where the two immovables, or one of them, pass into the hands of other owners without change in their state, unless otherwise agreed".

An easement may therefore be constituted over two separate immovables belonging to a single owner by his act, such that if ownership of them passes to others the easements subsist as the original owner constituted them. Constituting such an easement requires:

1. That two separate immovables be established as having belonged to a single owner. Contiguity is not required. There may equally be a single immovable which the owner has divided, giving one portion an easement over another. Separation or division occurs voluntarily by a disposition transferring ownership, such as sale or gift, or by partition, by the fall of the hammer at auction, or by acquisitive prescription. No easement is constituted where the separation results from rescission or nullity.

The Egyptian Court of Cassation has held that "it is settled that an easement by destination of the original owner comes into existence upon the extinction of the original owner's ownership of the two tenements, dominant and servient, and their devolution upon different owners; it subsists as an accessory to the benefit of the dominant tenement, and is negatived only where the instrument extinguishing the original owner's ownership of the two immovables contains an express term contrary to the subsistence of the easement". Cassation, 5 May 1981, appeal 801.

1. That the easement be constituted by the owner himself, and not by a usufructuary or a lessee.
2. The easement must be apparent and free of obscurity, carrying a visible mark — a window the original owner opens, thereby constituting a right of prospect, a channel he digs, or other visible marks. Negative easements are accordingly not constituted by destination of the owner, since they carry no visible mark, as with an easement not to build higher.

Where, then, there is no visible mark connecting the two immovables, no relation of dependence between them arises, and an easement by destination of the original owner is not made out. In that case the easement may still be established by another mode of acquisition, such as prescription or inheritance: drainage from one immovable running beneath the land of the other establishes an easement, but being unapparent it will not have been constituted by destination of the original owner. Where the visible mark exists, the relation of dependence between the two immovables is made out, so that if the original owner disposes of one of them the tacit intention is present, between him and his transferee, to preserve that relation, and the easement subsists between them.