Each mortgage application has its own concerns. What if the bank’s decision is denied? Is there any way you can protect yourself to make sure you get a loan? A loan against real estate is a popular solution.
But what if it is encumbered with the right of the easement? What does the relationship between mortgage loan and easement look like in practice?
Servitude can take three different forms: personal, land and lifetime. So it’s time to look at each of them separately. First, however, it is worth knowing the legal essence of this concept to understand how it can affect the granting of a mortgage.
What is an easement?
Servitude is a specific type of limited right associated with the disposal of real estate. It may apply to the owner of one property in relation to the owner of the neighboring property.
This is the case, for example, when a person obtains the right to pass through someone else’s property, e.g. because there is no other way to get to their home.
Servitude may also be aimed at ensuring that the specific needs of a natural person, e.g. housing, are met. She sells the property at that time, but she leaves the right to live in it until her death.
In the first case, there is talk of the land easement, while in the second case, a personal easement. What exactly makes them different?
What is a personal easement?
It is worth knowing that personal easement is assigned to a specific person and is timely. This means that at the time of her death this right does not pass to the estate. What’s more, it cannot be relinquished to another person.
In Poland, personal easement most often concerns housing, or more precisely, the right to use the premises for housing purposes. A person who is entitled to the personal easement may, therefore, use the property until his death, but he does not remain his property.
It is not possible to obtain the right to an easement by prescription. Although it is difficult to take away this right, if the person who owns it deliberately acts to the detriment of real estate, he may receive a right to a pension in return.
There are no provisions that specify the scope of duties of a servant. In fact, they are based on the principles of personal intercourse and are set each time individually. It is also important in this case that only a natural person can receive the right of easement. It is not due to legal persons.
The concept of the personal easement should also be separated from life. The owner of the flat is not obliged to provide maintenance, food or care to a person who gains the right to an easement. It is only to enable her to live in the property until her death.
What is a land easement?
Ground easement operates on slightly different principles. This right is to ensure the possibility of using real estate or make it more usable.
In most cases, the right to use the land in a certain way becomes the subject of the easement. It may turn out that the road to a given property leads through the neighboring plot. Then its owner receives the right to drive through the neighbor’s plot.
Importantly, this right is indefinite and, as a rule, does not apply to a specific person, and the owner of the property. Therefore, if the property is sold, the new owner will get the right to the easement of land.
Land servitude expires on its own if it has not been made by the owner of the property in 10 years.
There is also a possibility of abolishing the land easement. This can happen in two situations:
- Its use is no longer necessary (e.g. the road to the property was created elsewhere).
- A ground easement is burdensome for the owner of the encumbered property and at the same time is not necessary for the owner of the dominant property. It should be borne in mind, however, that in this case, it is necessary to pay the owner of the property possessing adequate financial remuneration.
Mortgage and easement
What is the relationship between mortgage and easement? In this case, the issue may turn out to be a bit complicated. It would seem that since we have real estate, we can easily take out a loan as collateral. However, if it includes easement, then things get complicated.
The vast majority of banks do not agree to a mortgage with the easement . Real estate properties that are encumbered with a limited property right to a personal easement or life imprisonment can rarely become collateral for a loan. An easement mortgage for real estate is therefore rare.
What about personal easement? Will it be difficult to get a loan in this case?
Personal servitude and mortgage is probably the most complicated issue. In this case, it is difficult to talk about the legitimacy of loan collateral. If there is a lack of repayment, it will be necessary to sell the property.
Selling an apartment that third parties have the right to use is extremely difficult.
Most people invest in housing for housing or rent. Purchase of an apartment that for a long time no one can move in or have to share space with current tenants, hardly anyone will be interested in.
That is why banks are reluctant to secure real estate encumbered with the right to a personal easement.