Legally where do i stand?


Readers Questions answered each week 

Dear Noelia

I would like to ask:

We have a property which is currently accessed by crossing some 4 or 5 metres of our neighbours land which at present is mutually respected (although, at an expense, it would be possible to cut a new access).  However, on our land, we have a wooden electric pole which supplies electricity to our neighbour and a telephone pole (they were in situ when we bought the property).  Do we have any say in this?  Are we able to remove such electric pole if we no longer wanted it on our land or if he becomes difficult with regard to our access? We have not see any paperworks which gives him unconditional rights to have these poles on our land.

Kind regards
Mr & Mrs H.

 

The questions you are addressing are related to rights of way.

 

In Spain we have mainly two different types of rights of way depending on its formation: volunteer and legal.  The right of way needed to access your property would be the volunteer one, and the electric and telephone posts would be a legal right of way. The basic difference is that the first one you can constitute by agreement between the parties involved where the legal rights of way are to be imposed by the Law.

 

The right of way to access your property

 

In your case you have been using a right of way charging your neighbour’s land.  In order to be fully protected against any future disagreements on its terms and extension you should make sure that the right of way is registered as a charge against your neighbour’s property at the local Land Registry.  This is very important as to protect your right to access your property through their land and should therefore be registered as a charge. You can check whether this has already been done or not in an updated "nota simple" of your property. 

 

If you have been using this right through a mere verbal agreement then I recommend that you both agree on its formal acceptance and registration to be signed before a Spanish Notary and to be registered before the local Land Registry where the properties are located.  In accordance with the Spanish Civil Code (sec. 564-570) you will only be entitled to do this if your plot is located inside the neighbours plot has no access to a public path/road.  In this case you can request a right of way to access your property against an economical compensation to your neighbour, to which by law he is entitled to this compensation will be based on the value of the land that you will continuously occupy.

 

 

The electricity right of way

 

In this case you find yourself with an already existing legal right of way.  In the first place you should also verify whether this charge appears registered against your property at the Land Registry.  These rights of way are regulated in the Act of the Electric Sector (Ley 54/1997).  Under this Act the installation of electric posts are imperative and therefore would be justified as long as they have a public purpose.  For this purpose, before the approval of its installation, the corresponding administration should have formally recognised this "public" purpose before giving the go ahead.

 

If I understand correctly these posts are only supplying electricity exclusively to your neighbour and, in my opinion, this does not justify the public utility. However in order to get any clarifications on this matter you should attend the offices of Iberdrola if you wish the posts to be removed or placed somewhere else.

 

My personal advice is not to pursue this matter further unless the right of way to access your property through your neighbours land is completely registered as such at the Land Registry.

 

 

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Additional information