How do I move a road easement on your land?

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, she said, it is important to know that the Constitution enshrines an important principle of the inviolability of property. "In interpreting this principle, the Constitutional Court has stated that the inviolability and protection of property means that the owner has the right to own, use and dispose of property belonging to him or her, as well as the right to demand that other persons do not violate these rights, and the state has the duty to defend and protect property against unlawful encroachment," Dubovsienė points out.

To address the situation described above, the remedies for the owner of the land on whose land the road easement is established are set out in the Civil Code. According to the legal framework laid down therein, the method to be applied in order to protect the rights of the owner depends on how the infringement of the rights of the owner of the object is manifested. "If the violation of the owner's rights does not involve loss of possession, which is what we have in the situation described here, and if it is not possible to reach an agreement with the neighbour, an action for the elimination of the violation of the right of ownership that does not involve loss of possession - a non-generative action - should be brought," she stresses.

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.