Legal Updates

An easement may be canceled in the absence of use or if there is a change in land or even in the plans of its owners

April 16, 2020

Owners of the inner part of a split plot located in the mountainous part of the city of Haifa passed for years through the second section, on a steep slope, to the main road. Years later, the municipality built a public staircase outside the plot, which created an alternate route to the main road and the second part of the plot also built a house in 1963, so the historic passage ceased to be used both due to the alternative roads and because it was dangerous, due to the steep slope and the erosion and disappearance of some of the old stairs. However, in 2012 the owners of the inner plot demanded a permanent right of passage through the other plot.
The Supreme Court held that the lawsuit should be rejected and no easement exists. An easement is a proprietary right that permits a person to make use of the property owned by another, even if the owner of that property is in later changed. Unlike contractual easement that requires a written agreement, in order to create an easement by prescription, thirty continuous use without the owner's objection is required. An easement is a temporary right and therefore it may be revoked or changed in the event of a lack of use of the easement, a change in the circumstances of the use of the easement and a change in the property subject to it. An objective change in the state of the real estate, and even a change in the subjective wishes of the landowner, such as the desire to build and develop the plot, may justify the cancellation of an easement by prescription. Here, there was no continuous use for 30 years, but even if there was, there are in any case ground for cancellation of the easement due to the significant change in the circumstances of the use of easement.