Right of way easement: when you have to pay for access and when the law grants it for free

Quick answer: article 847 of the Civil Code allows the owner of a property that is cut off from all communication with the public road to impose a right of way easement (servidumbre de tránsito) over the intervening properties, paying the value of the land needed and compensating for any other loss. If there is no agreement, the amount and the manner of exercising it are set by court appointed experts. But there is a rule that almost nobody knows about and that changes the conversation completely: article 850 provides that if the property was left with no way out as a consequence of a sale, an exchange or an allotment in a partition, the easement is deemed granted without any compensation at all. And there is a second rule, in article 882, that surprises everyone: passage is not won with the years. Not even immemorial enjoyment is enough.

The first question, then, is not how much it costs or how many years someone has been passing through. It is this: was your property born landlocked, or did it become landlocked because somebody divided and sold?

The two scenarios, and why they are nothing alike

Why this matters so much in practice. Most of the properties without access that we see were not born landlocked: they became landlocked when somebody parcelled out a large property and sold the back plots without setting up an easement. That is exactly the situation covered by article 850, and yet the buyer of the back plot usually ends up paying for a passage that the law had already granted him.

It is the typical scenario of properties sold as shares and rights and of irregular subdivisions: fifteen plots that exist in fact on a property registered as a single one, and only three of them with a way out to the road.

The rule that comes as a surprise: passage is not won with the years

It is the most frequent conversation and the one that ends worst. Somebody has been coming in along the same track for twenty or thirty years, the neighbour sells, the new buyer shuts the gate, and the instinctive answer is that after so much time the right has already been won. It has not.

Article 882 of the Civil Code is categorical: discontinuous easements of every kind and continuous non apparent easements may only be acquired by means of a title, and not even immemorial enjoyment will suffice to constitute them. Only continuous and apparent easements can be won by prescription of five years.

The right of way easement is discontinuous by definition, because it is exercised through a human act every time somebody passes. That is why time does not constitute it, and that is why the neighbour who allowed passage for thirty years can close it off. What there can be in that case is a legal right under article 847 or article 850, which is a different thing: it was not won through use, it exists because the property is landlocked. Confusing the two is what makes people turn up in court arguing what does not apply.

What has to be proven

The law uses a demanding expression: the property must be cut off from all communication with the public road. It is not enough for the access to be inconvenient, long or in poor condition.

• That there is no way out at all, not that the way out there is does not suit you. If an access exists, even a worse one, the article 847 claim is weakened.
• That the intervening property is the right one. You do not get to choose the neighbour you get on worst with: what is sought is the route that resolves the access while causing the least damage.
• The registered title to your property, with its surface area and boundaries, and with no outstanding objections at the Real Estate Registrar (Conservador de Bienes Raíces). If the registration does not match the ground, the discussion gets stuck before it starts and you first have to correct the surface area.
• The origin of the situation, which is what decides whether article 847 or article 850 applies. It is proven with the chain of title: which larger property yours came out of, and in what transaction.
• That the road you want to reach is in fact a public road, or one of the roads the law treats as equivalent. This point is taken for granted far too often.

How the amount and the route are set

When compensation is owed and the parties cannot agree, article 848 is blunt: it will be settled by court appointed experts, both the amount of the compensation and the exercise of the easement. That is to say, the expert does not only set a price: he also defines where it runs, how wide it is and under what conditions.

That has a strategic consequence worth understanding before litigating. In an easement case what is argued about is not only how much, but where. Arriving with a proposed route, surveyed and justified, carries far more weight than arriving only to ask for passage.

The easement can come to an end

It is created to solve a specific problem, and when the problem disappears the easement can disappear too. It is worth keeping in mind in both directions.

What changed in 2022: every subdivision must be born with access

Law 21,458, of July 2022, amended Decree Law 3,516 to close precisely the problem that generates most of these cases. Since then, the properties resulting from a subdivision carried out under that decree must have access to a public space or to a road from the agrarian reform parcelling process, the so called CORA roads (roads from the agrarian reform parcelling).

The same law dealt with something that used to be left hanging: common roads, whether they are set up as an easement or as a road lot, must be maintained proportionally among the owners who use them to get from the public space to their properties.

For anyone buying today, the practical rule is simple. If the parcel comes from a subdivision later than that law, the access must be resolved on the plan and in the title, and if it is not, there is a defect to complain about. If it comes from an earlier subdivision, nobody guaranteed you anything, and you have to check it yourself before signing. The full requirements for a subdivision are in the guide on how to subdivide agricultural land.

The road you arrived by is probably not public

It is the mistake that costs the most, and it is made on the day of the visit. You reach the land along a dirt road in good condition, you assume it is public because there are other neighbours using it, and nobody checks.

The procedural mistake that loses months

When the neighbour shuts the gate from one day to the next, the natural reaction is to go for a constitutional protection action (recurso de protección), which is fast. The courts have been clear that it is not the right route. In February 2024, the Court of Appeals of Valparaíso rejected a constitutional protection action about a right of way easement in a parcelling, reasoning that the existence, validity or scope of a real encumbrance goes beyond the precautionary purpose of the action and must be resolved in a full trial on the merits, because the constitutional protection action has no evidentiary stage.

Translated: the protection action can be useful for very blatant and current factual situations, but not for having a court declare that you hold an easement. That is declared in a trial, with evidence, and whoever starts down the short route usually ends up starting again months later.

What to do, in order

• Check the origin of your property before talking to the neighbour. If your plot came out of a sale or a partition, you are not asking for a favour or buying a right: you are enforcing article 850.
• Check whether the destination road is public. It is the question that comes before all the others and it is answered with documents, not with what is customary in the area.
• Document the absence of access. A survey, photographs, and confirmation that there is no other way out to the public road.
• Propose the route in writing, with a plan. A well made agreement avoids the case, and if the case comes anyway, the prior proposal organises the discussion.
• Create the easement by public deed and register it. A verbal agreement with the current neighbour does not bind whoever buys the property next year, and without a title there is no easement however much time goes by.
• If there is no agreement, go to court with the route and the valuation prepared, not just with the claim, and through a full trial rather than a constitutional protection action.

Frequently asked questions

My neighbour used to let me through and now he has shut the gate. Do I have an acquired right?

Not from the passage itself. Article 882 prevents acquiring by prescription a discontinuous easement such as the right of way easement, and it says expressly that not even immemorial enjoyment is enough. What has to be checked is whether an easement has been created and registered and, if not, whether your case falls under article 847 or article 850. The answer is in the chain of title, not in how many years you have been passing through.

How much is paid for a right of way easement?

The law does not set rates: you pay the value of the land needed for the easement and any other loss, and if there is no agreement court appointed experts determine it. That is why any figure you are given without anyone having seen the property and the route is an estimate with no basis.

Can I ask for the passage to run where it suits me?

You can propose it, and it is worth doing so with a plan. But the route is not chosen for the convenience of the dominant property: what is sought is the one that resolves the access while causing the least loss to the servient property, and failing agreement the court appointed experts define it under article 848.

I bought a plot at the back of a large property. Do I have to pay for the passage?

That is exactly the situation covered by article 850. If your portion was cut off from the road as a consequence of the sale or of the allotment, the easement is deemed granted without compensation. It is worth checking before accepting a charge.

Does the easement get registered?

It must be created by public deed and registered so that it is enforceable against third parties. Without registration, the next owner of the servient property can disregard it, and you are back to square one with the way closed. If the Real Estate Registrar objects to the registration, the objection has to be corrected and not left to pass, as we explain in the guide to Registrar objections.

I have the easement registered but I have not used it for years. Can I lose it?

Yes. Article 885 lists among the ways of extinguishing it having ceased to enjoy it for three years. If you keep an alternative access out of convenience, it is still advisable to exercise the passage or to leave a record of it, because prolonged non use is one of the defences the servient property can raise.

Does it work for running pipes or cables?

The right of way easement is for passage. Carrying water, electricity or other installations has its own legal forms and its own rules. If what you need is water, it is worth checking beforehand whether the property has water use rights, and creating those easements expressly in the same deed if they are going to be needed.

The access I have is terrible but it exists. Can I demand a better one?

The rule speaks of being cut off from all communication with the public road, so a bad but real access weakens the claim considerably. What can be argued, depending on the case, is whether that access is really usable or is non existent in practice, and that is proven with technical evidence and not with the owner's impression.

Who pays for maintaining the common road?

Since Law 21,458, the common roads of a parcelling, whether they are set up as an easement or as a road lot, must be maintained proportionally among the owners who use them to reach their properties. What is advisable is to set that proportion and the way of charging it in writing, before the first pothole appears.

I bought a parcel and the plan shows an easement that is not registered. Is it valid?

A plan does not create an easement. Until there is a registered public deed, what there is amounts to an intention drawn on paper. It is one of the points we always check in a title study, because it comes up frequently and the buyer usually finds out once he has already signed.

How we work on this

The first thing is the chain of title, because that is where the question that decides the case comes from: if the property became landlocked through a sale or a partition, the position is completely different and much stronger. It is a title study review and it is done before any conversation with the neighbour.

Then comes surveying the route, which our own surveying team carries out. Arriving to negotiate with a plan and a defined width changes the conversation: it stops being a request and becomes a concrete proposal that the neighbour can accept or discuss.

If there is agreement, we draft and register the easement, which is the part most often neglected and the one that prevents the same problem ten years from now. If there is not, the case is handled by our civil litigation area, through the declaratory route and not the precautionary one, which is where many lose time.

Send us the title registration of your property and its location, and we will tell you whether your case falls under article 847 or article 850, which is the difference between paying for the passage and paying nothing at all.