Servitudes, rights of way and encroachment in Bosnia

A servitude (služnost, in Republika Srpska službenost) is a right to use someone else's property in a specific way, for example to walk or drive across a neighbour's plot to reach your house. A right of way (pravo prolaza) is the most common kind. Uzurpacija (roughly, encroachment) is the everyday term for a house, fence or yard that sits partly on someone else's or on public land. Both matter to a buyer for the same reason: a servitude stays with the plot after you buy it, and encroached land can lead to a demand to restore the previous state or to pay for the strip.

This is general information, not legal advice. A notary or lawyer confirms the details for your specific case.

Which law applies where

Bosnia and Herzegovina has three property law systems, and the rules differ in deadlines and in how far a buyer is protected. Always establish first where the property is.

• Federation of BiH (FBiH): the Law on Property Rights (Zakon o stvarnim pravima), in force since March 2014. For older situations, the previous Law on Ownership Relations (Zakon o vlasničko-pravnim odnosima) can still be relevant.
• Republika Srpska (RS): the RS Law on Property Rights. It uses the term službenost.
• Brčko District: the Law on Ownership and Other Property Rights of Brčko District.

What a servitude is

A servitude is a limited property right over someone else's property. The holder may use that property (the law calls it the poslužna stvar, the serving property) in a defined way, and the owner must put up with it or refrain from certain acts.

There are two basic types:

• Real servitude (stvarna služnost) is attached to a plot, not a person. If you buy a plot that has a right of way across the neighbour's land, that right passes to you. If you buy a plot that someone else has a right of way across, that burden passes to you too.
• Personal servitude (lična služnost) is attached to a person. In FBiH these are usufruct (plodouživanje), use (upotreba) and the right to live in a property (stanovanje). A typical case: a parent transfers a house to a child but keeps the right to live in it.

FBiH also has an irregular servitude (nepravilna služnost): a servitude whose content is of the plot type but which is created in favour of a named person. The rules for personal servitudes apply to it.

Rights of way

The RS law distinguishes several kinds of passage:

• footpath (pravo staze) - passage on foot,
• livestock route (progon stoke) - which also allows carts and bicycles,
• vehicle way (pravo puta) - passage by vehicle.

The difference is practical. If only a footpath is registered, you cannot assume you may drive a car to the house. When buying, check not only that a passage exists but what kind it is.

Court-ordered access for a landlocked plot

If a plot has no access, or no suitable access, to a public road, its owner can ask the court to set a necessary right of way (nužni prolaz) across a neighbouring plot.

In FBiH the conditions are:

• the benefit to your plot must be greater than the harm to the plot crossed,
• you pay full compensation, which cannot be lower than what expropriation would pay,
• the route opens only once the compensation is paid,
• it is not allowed where it is against the public interest, through buildings, fenced house yards or fenced game farms, and through fenced gardens or vineyards only for a specially justified reason.

In RS the test is essentially the same. In RS the court sets the route as a footpath, a livestock route or both, and sets it so that the crossed plot is burdened as little as possible.

Courts decide these cases in non-contentious proceedings (vanparnični postupak, a simpler procedure without a formal lawsuit) at the court for the area where the property lies. If the court finds the dispute belongs in ordinary litigation, it suspends the case and it continues as a lawsuit. Court fees and duration depend on the case and the court; ask a lawyer before you plan around a timeline.

How a servitude is created

A servitude can arise:

1. by agreement (a legal transaction), for example when neighbours agree and have it registered,
2. by a decision of a court or other authority, for example a necessary right of way, or partial expropriation in FBiH,
3. by long use - called dosjelost in FBiH and održaj in RS.

In both FBiH and RS, acquiring a servitude by long use takes 20 years of honest use without objection from the owner. In FBiH it cannot arise if the use began by force, in secret, by abuse of trust, or as a favour that could be withdrawn at any time (na zamolbu do opoziva). The rule for Brčko District needs to be checked separately.

In RS, a servitude based on an agreement exists only once it is registered in the public records. That is another reason not to rely on a neighbour's spoken promise.

The biggest hidden risk: a servitude acquired by long use exists even if it was never entered in the land register (zemljišna knjiga). The extract can look clean while the neighbour still has a right of way.

Encroachment: when a building or fence is on someone else's land

Uzurpacija is not a term the property laws define. They deal with the same situation through three sets of rules.

Building on someone else's land

In FBiH a building put up on someone else's land belongs to the landowner, who may demand the land and the building back. The builder may claim compensation under the law of obligations.

Building across the boundary

This is common with houses: part of the house, a garage or a fence crosses onto the neighbour's plot.

• FBiH: according to available interpretations, a builder acting in good faith can acquire ownership of the occupied strip by paying its market value. Confirm the exact conditions of this rule with a lawyer before relying on it.
• Brčko District: the neighbour may demand that the previous state be restored. Until then, the building's owner is treated as holding a servitude to keep that part of the building on the neighbour's land.
• RS: check the rules for this situation with a lawyer.

State and socially owned land

According to FBiH court practice, ownership cannot be acquired by building on state or socially owned building land, or on state forest land. If part of a yard or building stands on such land, a buyer should not expect it to sort itself out. This often overlaps with legalisation; see Legalisation of property in Bosnia: what buyers need to know.

Acquiring ownership by long possession

In FBiH, ownership is acquired after 10 years of lawful, honest, uninterrupted independent possession not gained by force, threat or abuse of trust, or after 20 years if the possession is only honest. A predecessor's time of possession can be added. Confirm the periods for RS and Brčko District with a lawyer.

Risks for the buyer

• A servitude goes with the plot. A sale does not erase it. In FBiH it also survives the division of co-owned property.
• Unregistered servitudes. In RS an unregistered servitude ends when the property is bought by someone who did not know and should not have known about it. A visible path, pipe or cable can be evidence that you should have known. FBiH and Brčko District do not have a confirmed equivalent rule, so do not rely on it there.
• Landlocked plot. If you buy a plot without access, a court-ordered right of way means full compensation to the neighbour and however long the court case takes.
• Building over the boundary. You can inherit a dispute with the neighbour: a demand to restore the previous state (Brčko) or payment for the occupied strip (FBiH, subject to a lawyer's confirmation).
• Co-ownership. In Brčko District, creating a servitude needs the consent of every co-owner. If a seller promises you access across a plot they share with others, that promise is not enough.
• Ending through non-use. In RS a servitude ends after 10 years of non-use. In FBiH the holder's claim to have the servitude respected lapses 20 years after they stopped using it. Do not assume an old path has expired without checking.

How to check before you buy

1. Get the land register extract (ZK izvadak; in some areas the list nepokretnosti) and read the part where burdens are recorded. Servitudes and mortgages are usually entered there. See Land registry extract in Bosnia and How to check a Bosnian property for mortgages and burdens.
2. Compare the extract with the cadastral map. Does the fence follow the boundary on the map? Does the plot touch a public road, or only a neighbour's plot?
3. Walk the plot. Look for worn paths, wheel tracks, gates towards neighbours, pipes, manholes and cables.
4. Ask the neighbours whether anyone crosses the plot and for how long. If the answer is 'always', a servitude may exist even though it is not registered.
5. Ask the seller in writing about every passage, arrangement with neighbours and dispute, and put the statement into the contract.
6. If the boundaries are unclear, consider a survey by a licensed surveyor before signing.
7. If you need access across someone else's plot, have the servitude agreed and registered before or together with the purchase.

For more on houses and plots, see Buying a house with land in Bosnia: the extra checks.

Mistakes to avoid

• Relying only on a clean extract. A servitude acquired by long use does not have to be registered.
• Accepting a neighbour's spoken promise of access. The neighbour can sell, and the new owner is not bound by their word, especially in RS, where a servitude by agreement exists only once registered.
• Assuming a footpath also means access by car.
• Buying a house whose fence or garage crosses the boundary without an agreement on what happens to that part.
• Not asking about old arrangements from before the current laws. In FBiH, earlier rules can still govern older cases.

Example

A buyer living in Sweden is considering a house with a garden in FBiH. The extract shows no burdens. On a video viewing, the buyer notices a worn path running across the yard to the neighbouring house. The neighbour says his family has walked that way for more than 30 years without objection.

The neighbour has very likely acquired a servitude by long use, even though it is not registered. The buyer cannot remove it simply by buying the house. The open question is its extent. In RS, court practice limits such a right of way to the extent actually used for at least 20 years, here passage on foot. It is likely that an FBiH court would also look at the actual extent of use, but that needs to be confirmed with a lawyer.

The buyer has several options: accept the path and reflect it in the price, agree the exact route with the neighbour and have it registered, or walk away. What the buyer should not do is buy the house planning to fence the path off.

How DMI helps

We visit every property we list in person and check its land registry entry, legalisation status and photos before publishing. Our current listings are flats in Sarajevo, where servitudes and boundary disputes are less common than with houses and land, but we run the same checks when you ask us about a house or plot. For buyers abroad we offer video tours that also show what an extract cannot: paths, gates towards neighbours and the state of fences. Where a finding needs a legal view, we recommend that a notary or lawyer gives it before you sign.