Right of way over a property: what to check before selling
Before selling a property with a right of way, it is wise to review the title, the deed and the simple land registry extract to know what right exists, over which property it applies and whether it may still be in force. This guide helps you check it with practical criteria and without confusing a right of way with mere neighbourly tolerance.
What you should check first if your property has a right of way
If you are going to sell a property and suspect there is a right of way, the first thing is to identify exactly what right is registered or agreed, over which property it applies and what its real scope is. It is not advisable to assume that “because it has not been used for years” the right of way has disappeared on its own. Under common civil law, the relevant rule is that the existence of an apparent sign of easement established by the owner of both properties can serve as title for the easement to continue when ownership is separated, unless the deed of transfer states otherwise or that sign is removed before executing the deed: Civil Code, article 541.
That means that, before selling, you should check at least three things:
1. Whether the right of way appears in the deed to your property or in that of the dominant property.
2. Whether it is recorded in the Land Registry or is only known through historical use or an old reference.
3. Whether the passage corresponds to a valid real right or to a mere factual situation tolerated over time.
The difference matters, because a property burdened by a real easement is not transferred in the same way as a home with a simple de facto access that was never legally established.
Which documents it is advisable to review before putting the property up for sale
Document review is the most useful part for avoiding surprises at the deposit, notary or registry stage. If you have doubts, get copies and do not rely only on memories or neighbours’ comments.
### 1. The title deed
Review the title deed and any previous deeds if you keep them. Look for express mentions of easements, paths, accesses, use of entrance hall, patio, corridor or lane. It is also worth reading whether the easement was described as permanent, voluntary, reciprocal, apparent or conditional.
### 2. The simple land registry extract
The simple land registry extract will help you see whether the burden is registered, whether there are references to easements and whether the property being sold appears as the servient or dominant property. It does not replace the deed, but it does serve as a first filter to know what the buyer will find.
### 3. The bylaws and title documents of the building, if it is a community
In some properties, access to or use of certain spaces does not arise from a classic easement between plots, but from the horizontal division, the bylaws or constitutive title deeds. If the passage affects a communal area, do not assume it is a right of way in the strict sense.
### 4. Plans, the land registry and the physical reality
Check whether reality matches the documentation. Sometimes there is a path, a gate or an access point that is used in practice, but whose legal definition is not clear. That discrepancy should be resolved before advertising the property.
What to check about the scope of the right of way
It is not enough to know that “there is a passage”. What matters when selling is exactly what that right allows and what it does not allow. Speak about it precisely rather than using generic expressions.
1. **Where it runs**: identify the exact route.
2. **Who can use it**: owner, occupants, maintenance staff or third parties.
3. **What it is for**: pedestrian access, vehicle access, garage entry, service or maintenance.
4. **What limitations exist**: hours, width, gates, keys, enclosures or shared use.
5. **Which property benefits** and which bears the burden of the passage.
If the title is ambiguous, do not fill the gaps with your own interpretations. The buyer will want to know whether the easement limits privacy, the ability to enclose an area, the placing of obstacles or the future layout of the property.
Common mistakes when selling a property with a right of way
### Mistake 1. Thinking that non-use automatically removes it
This is a common mistake. If the easement was validly established or if there is an apparent sign with the appropriate legal scope, it is not advisable to state automatically that it has disappeared simply because it has not been used for years. Extinction or modification depends on the title, the way it was created and provable facts.
### Mistake 2. Hiding the right of way in the listing or in preliminary conversations
Even if the buyer has not yet seen the documentation, it is preferable to mention the right of way from the outset if it affects the use or perceived value of the property. If it is concealed, the conflict usually appears later, when there is already a deposit or a deed prepared.
### Mistake 3. Confusing an easement with a neighbourly permission
A neighbour may allow passage out of courtesy, but that does not always amount to a real right. It is advisable to distinguish between tolerance, a private agreement and an easement that is registered or evidenced in the title.
### Mistake 4. Promising the buyer that it “can be cancelled easily”
Do not offer quick solutions without reviewing the title. If cancellation requires consent, documentary correction or sufficient proof of extinction, anticipating it can lead to claims.
Practical steps before signing the deposit or the deed
1. Gather the deed, the simple land registry extract and, if applicable, community documentation or plans.
2. Mark the route of the passage on a plan and compare it with what is described in the documentation.
3. Check whether the easement is registered, how it is described and what purpose it serves.
4. Verify whether the actual scope matches the current use.
5. If there are doubts about whether it still exists or has been modified, ask for legal review before setting the terms of sale.
6. Put in writing in the sale and purchase agreement what is being transferred and in what condition it is being transferred, to avoid later interpretations.
When it is advisable to seek help before selling
If the easement affects the main access, the garage, a patio, an adjoining property or the useful layout of the home, it is prudent to review the documentation carefully before marketing it. It is also advisable when the deed is old, there are conflicting titles or the actual use does not match what is registered.
If you would like to prepare the sale with a prior review of the documentation, you can request an initial orientation at /contacto or ask for an indicative valuation of your home at /valoracion-vivienda-madrid. The online estimate is indicative, includes a range and a PDF report, and can be completed with an optional visit if you need it.
At UBICASA we are at Calle Montesa 29, Madrid, Monday to Friday from 10:00 to 15:00 and from 16:00 to 19:00.
The key idea is simple: before selling, do not assume that a right of way “no longer counts”. Check the title, the scope and the physical reality, because that review will save you from corrections, disputes with the buyer and problems at the notary's office.