A road easement has been established on your land to give your neighbour, who lives on the adjacent land, access to his land. What if you think that you would like to build a pantry, for example, on the site where the road easement is located, and you want to relocate the road easement, but your neighbour has already made improvements and invested a considerable amount of money to create them.
Viktorija Dubovskienė, a lawyer at AVOCAD, explains what your obligations are and what legal regulations apply to such a situation.
First of all, according to the lawyer, it is important to know that the Constitution enshrines the important principle of the inviolability of property. “In interpreting this principle, the Constitutional Court has held that the inviolability and protection of property mean that the owner has the right to manage, use, and dispose of the property belonging to him, as well as the right to demand that others not violate these rights, and the state has a duty to defend and protect property from unlawful encroachment,” notes V. Dubovsienė.
To resolve the situation described, the Civil Code establishes the means by which the owner of a land parcel on which a right of way has been established may protect their property rights. According to the legal provisions set forth therein, the method that should be applied to protect the owner’s rights depends on how the violation of the owner’s rights manifests itself. “If the violation of the owner’s rights is not related to the loss of possession—which is the case in the situation described here—and if an agreement cannot be reached with the neighbor, a lawsuit should be filed to remedy violations of property rights not related to the loss of possession — a negatory action,” the lawyer emphasizes.
The owner's right to bring a non-statutory action is also enshrined in the Civil Code. Under it, the owner can demand the removal of any violation of his or her right, even if it does not entail loss of possession.
The Supreme Court of Lithuania has stated that when bringing a non-statutory action, the claimant must prove two things:
- that he is the owner of the property;
- that his rights have been violated.
According to AVOCAD's lawyer, it will not be difficult to prove that the plaintiff is the owner of the property in the above situation. However, the burden of proof will shift to the second point - that the rights of the owner are violated by the established road easement. Let us assume that, in these factual circumstances, the landowner considers that the neighbour's landscaping, including but not limited to the neighbour's gates, fence, trees, tuyas, etc., are a nuisance and that the owner is prevented from using the part of the land occupied by these objects in the part of the road easement.
In such a case, the non-statutory action is brought to protect a subjective property right of a specific person. In the case of a non-statutory action, the subject-matter of the action (the claims asserted) may be:
- put an end to the infringement of the applicant's subjective property rights;
- to restore the situation prior to the infringement of the applicant's subjective property right;
- prohibit any future infringement of the applicant's subjective property rights.
However, in this situation, the Supreme Court of Lithuania pointed out and clarified that the legislator does not directly link the violation of the rights of the owner of the land plot related to the infringement of the rights of the owner of the land plot related to the infringement of the requirements of the legislation by the violation of the rights of the owner of the land plot in relation to the infringement of the rights of the owner of the land plot by the infringement of the rights of the owner of the land plot by the infringement of the rights of the owner of the land plot by the infringement of the rights of the owner of the land plot by the infringement of the rights of the owner of the land plot by the infringement of the rights of the owner of the land plot by the infringement of the requirements of the legislation. Therefore, in order to be able to succeed in a non-compulsory action for the protection of a subjective property right, the infringement of which is attributable to trees, shrubs or other plants growing on the adjacent land close to the boundary of the parcel or on the boundary of the parcels of land, the claimant must, inter alia, prove that his subjective property right has been violated. The fact that it is established in a case that trees, shrubs or other plants are growing on the boundary of the parcels or on adjacent land at distances from the boundary of the parcel which do not comply with the legal provisions does not constitute a ground for declaring that the applicant's subjective right of ownership has been infringed.
Thus, according to the lawyer, it is not enough, when bringing a claim in a non-statutory action, to specify only the objects which, according to the claimant, prevent him from using the object for its intended purpose. It is then necessary to show how those objects infringe his rights.