I propose to the Government of the Republic of Slovenia to abolish the institution of the easement route and replace it with an emergency route.
The owner of a property encumbered by an easement cannot freely dispose of the property. Nor can he work on the plot with working and agricultural machinery, because the property must be at the disposal of the easement holder in order for him to be able to access his plot via the property. Nor is the owner of the servient estate entitled to compensation from the owner of the servient estate for damage to or diminution in the value of the servient estate caused by the easement. An easement way substantially interferes with the exploitation or use of the land over which such way is intended to run.
I therefore propose that the institution of an easement route be abolished and replaced by the institution of an emergency route. In the case of an emergency route, the owner of the servient estate is entitled to compensation, which must be paid by the owner of the servient estate.
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What is an easement?
An easement is a right in rem over a foreign object. It provides a certain dominion over the thing, but not the widest (a wider one is a right of ownership) It limits the owner of the thing, so it cannot exist on his own thing. In the case of an easement, the power over the thing is divided between the owner of the thing and the beneficiary of the easement.
An easement is an easement in rem, i.e. it is created for the benefit of the thing. It means that the owner of the servient land (i.e. the land for whose benefit the easement is created, i.e. the land that is reached by the easement route) can walk or drive over the servient land (i.e. the land on which the easement route runs), depending on how the easement route is defined. It may be designated for walking only, or it may be designated for driving vehicles.
Acquiring a right of way easement
Termination of a right of way easement
Emergency route
Slovenian law defines an urgent path as an easement in rem. Urgent paths are created due to the lack of path connections between individual properties and the public path network. As with easements, there are two immovable properties in the case of emergency routes, namely the servient land and the servient land. In order to create an emergency route, the following basic conditions must be met:
The fundamental principle is that easements must be fairly executed, which means that they must be executed in such a way that the damage to the encumbered property is minimised. Thus, in any creation of an emergency route, there are two competing interests - the interest of the owner of the property not connected to the public network and the interest of the owner of the property on which the emergency route is to run. The Court will reconcile these two competing interests in the proceedings, but will determine the extent, nature and direction of the emergency route only after assessing all the circumstances of each case. The emergency route must be established in such a place and in such a way as to cause the least possible disturbance to the properties affected and the least possible disruption to their owners. It should be noted that an emergency route does not always have to be established by the shortest possible route if that shortest route is not the most favourable or the least costly route for the land. The soil configuration and the culture of the land must be taken into account.
The emergency route shall not be established free of charge, but the beneficiary of the emergency route shall pay the obligor (the owner of the property over which the emergency route will pass) an appropriate monetary compensation. In determining the monetary compensation or indemnity, account must be taken of the amount of damage that will be caused to the property as a result of the creation of the emergency route itself and the diminished value of the encumbered property.