SUMMARY OF THE ARTICLE
1.- Can the passage of time create a right of way?
A right of way is classed under the Civil Code as a discontinuous easement. This means that, in principle, it cannot be acquired through the simple passage of time (usucapion), unlike other types of easements.
2.- Tolerance and a right are not the same thing.
When a path has been permitted out of good neighborliness, the time during which access has been tolerated would not be enough to create a real right. The Civil Code establishes that acts based on mere tolerance carry no legal weight for these purposes, and that such permission could be withdrawn.
3.- Cases in which a genuine right of way would exist.
A genuine easement could be said to exist where there is a public deed formally establishing it. Also, where there is an express acknowledgement by the owner, a court ruling, or where the property has no access to a public road.
In many parts of the Costa Blanca and the Marina Alta, it is common for two neighboring properties to share an access path. Over the years, it is not unusual for the person using that path to come to believe it already forms part of their rights. And for the owner of the property that is being crossed, to wonder whether, after so much time, they can still object. In this week’s article, we look at whether a right of way can be obtained simply because a path has been used for years.
Types of easement. Civil Code.
On one hand, easements can be continuous or discontinuous. The former are exercised constantly, without the need for a specific human act. A right to light and views, for instance. The latter, however, are only exercised through specific acts carried out by a person. A right/easement of way falls into this category.
Additionally, easements can also be apparent or non-apparent. Apparent easements are signaled by a visible, permanent sign (a gate, a marked path, and so on). Non-apparent easements show no outward indication at all.
Right of way. Tolerance by the owner.
Under Spanish law, for a right of way to exist, one of the following situations must be present:
.- There is a public deed formally establishing it.
.- The owner of the servient property has expressly acknowledged it (art. 540 C.C.).
.- There is a court ruling declaring its existence.
.- The property has no access to a public road, giving rise to a legal easement of way (arts. 564 to 570 C.C.).
Does the mere passage of time generate any kind of right?
Many people wonder whether having used a path for 20, 30 or more years could generate some sort of right. To answer this, we need to start with a very important distinction.
- One thing is the right of way itself, which, as we have seen, carries a series of requirements.
- A different thing is simple tolerance. That is, the goodwill of an owner who may have allowed, out of courtesy, access to their property via a path.
As we shall see below, the difference between the two carries very different consequences.
Adverse possession (Usucapion) and Right of Way.
Spanish law recognises a legal mechanism, usucapion, which allows a right to be obtained through the simple passage of time. That is, without the need for a deed or any prior title. However, when it comes to easements, the Civil Code is clear: only continuous and apparent easements can be acquired by usucapion. Given that a right of way is a discontinuous easement, we understand that it can never be obtained in this way. This has also been repeatedly confirmed by the Spanish Supreme Court. Therefore, the mere continued use of a path, on its own, should not be enough to consolidate a right.
Conclusion.
As we have seen, distinguishing between mere tolerance and a genuine right of way can carry very significant consequences, both for the person using the path and for the person allowing it. At White-Baos Lawyers, we are experts in civil law and neighbor disputes. If you have doubts about a similar situation, do not hesitate to contact us.
The information provided in this article is not intended to be legal advice but merely conveys information relating to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
E-mail: info@white-baos.com
White & Baos 2026 – All Rights Reserved.
