Legal summary

January 2024

Wiegandová v. the Czech Republic - 51391/19

Judgment 11.1.2024 [Section V]

Article 1 of Protocol No. 1

Article 1 para. 1 of Protocol No. 1

Peaceful enjoyment of possessions

Article 1 para. 2 of Protocol No. 1

Control of the use of property

Encumbering of a flat owned by the applicant by virtue of an ex lege unpaid easement created by the property restitution legislation in favour of a housing cooperative: no violation

Facts – In 2003 the applicant inherited a tenement house which her partner had acquired in restitution from the State in 1991, under Law no. 87/1991 on Extra-Judicial Rehabilitations, following its expropriation to the State from his legal predecessor in 1961. The building contained, among other residential and non-residential premises, six flats that had been built by a construction cooperative when the building was owned by the State. Since 1992 an easement existed in respect of the flats based on statutory measure no. 297/1992. The easement is in favour of a housing cooperative which acquired the flats from the construction cooperative in 1987. In 2009 the applicant made an owner’s declaration in respect of the building, on the basis of which specifically defined sections of the building were recorded as non-residential or residential units; in total there were 59 units, including those built by the construction cooperative. The applicant became the owner of all those units. The easements in favour of the housing cooperative, concerning the use of the six flats, were preserved. Between 2009 and 2019 the applicant successively sold 58 of the 59 units in the building, including five of the cooperative flats to their occupants, members of the housing cooperative. She still owns the last flat. Proceedings brought by the applicant to terminate or reduce the easement were unsuccessful.

Law –

Article 1 of Protocol No. 1:

(a) Whether there was an interference –

The continued existence of the easement which encumbered the flat the applicant still owned had undoubtedly limited her enjoyment of that flat. In particular, because of the easement, the applicant might not use the flat, the cooperative being vested with the rights and obligations of landlord without limitation in time and being entitled to collect rent from the actual occupants. Indeed, it appeared that she might not enter any transaction regarding the flat except for its sale. There had thus been an interference with the applicant’s property rights that within the scope of the second paragraph of Article 1 of Protocol No. 1 which allowed the Contracting States to control the use of property in accordance with the general interest.

(b) Whether the interference was lawful and “in accordance with the general interest ” –

The easement was based on statutory measure no. 297/1992, amending Law no. 42/1992. Furthermore, easements which, like the one in the present case, resulted from the process of restitution of immovable property seized by the former communist regime were aimed at regulating relations between two groups of holders of property rights protected by Article 1 of Protocol No. 1: on the one hand, the original owners or their legal successors to whom the State returned immovable property in restitution, and, on the other hand, members of housing cooperatives to whom the former communist regime had given the opportunity to construct, at their own expense, flats on the premises of the restituted buildings. In those circumstances, the Court accepted that the easement over the flat owned by the applicant served and continued to serve not only the interests of the housing cooperative and its members but also the general interests of society as a whole. Further the legal relations created by the easement in the present case had remained unchanged over the years.

(c) Whether the interference was proportionate –

When the applicant had acquired the building in 2003 as part of an inheritance she must have been aware of the existence of the easement over the cooperative flats and the legal regime in respect of it and in particular of the fact that the easement had not, in principle, been limited in time and that the improvement of the building via the construction of the flats by a construction cooperative was regarded as adequate compensation for the restriction on the ownership. Nevertheless, she had accepted the inheritance and thereby became the owner of the property. Since then, there had been no legislative, jurisprudential or other development leading to any change of her legal position, namely that of the owner of a property partly encumbered by an easement created ex lege by the relevant statutory measure. Nor were there any elements supporting a conclusion that the applicant might at any stage have entertained a legitimate expectation in terms of the Convention case-law that the applicable rules regarding the easement would change so as to provide a basis to terminate or reduce it.

Although the lack of compensation in respect of the permanent restrictions on the enjoyment of her ownership right over the flat stemming from the easement, and in particular the impossibility for her to use it and rent it freely, was a factor to be taken into consideration in determining whether a fair balance had been achieved, it was not of itself sufficient to constitute a violation of Article 1 of Protocol No. 1. In that regard, the Court noted the specificity of easements created ex lege by statutory measure no. 297/1992 and the fact that that measure had been upheld by the Constitutional Court, which had excluded the impugned easements from the applicability of Article 11 § 4 of the Czech Charter of Fundamental Rights and Freedoms according to which any limitation upon property rights must be compensated. That had been the result of a difficult compromise adopted by the State in the complex situation of post-communist transition in the sphere of property rights. Contracting States enjoyed a wide margin of appreciation in such specific contexts.

The proportionality of the interference at issue had to be assessed by taking into account not only the situation regarding that remaining flat but also the fact that the applicant had obtained a substantial financial benefit after selling most of the residential and non-residential units in the building.

The domestic courts had considered that the passage of time alone had not been capable of disrupting the balance between a lasting improvement of the property on the one hand and restrictions on the ownership of the property on the other hand. They had explained that the legislature, by virtue of statutory measure no. 297/1992, had balanced the two absolute real and imprescriptible rights – the applicant’s ownership of the flats and the housing cooperation’s ownership of the created asset – by creating a particular type of easement. The mere passage of time could not, therefore, have constituted in those circumstances a change bringing about a gross disbalance between the encumbrance of the easement and the benefit for its holder, which could have been a reason for the cancellation or limitation of the easement. Moreover, the termination of the easement in favour of the cooperative would have resulted in the extinguishment of a property right – tenancy of the cooperative flat – and the impairment of the tenant’s membership share. The reduction of the easement would have meant that the housing cooperative would have to pay the applicant over and above the contributions set down in statute for the use of the units by its members.

The domestic courts seemed to have considered all the available evidence and their conclusions had been coherent from the perspective of the relevant national jurisprudential practice, including the Constitutional Court’s case-law. Importantly, the permanent existence of the easement had been considered by the Constitutional Court as instrumental to preserving property rights acquired in exchange of pecuniary contributions by bona fidae by private individuals – the cooperative and its members.

Having regard to the foregoing considerations and emphasising above all the wide margin of appreciation enjoyed by the respondent State, the Court considered that the applicant had not borne an individual and excessive burden because of the easement encumbering the flat remaining in her ownership. Accordingly, in the specific circumstances of the present case the balance between the interests of the community and those of the applicant had not been upset.

Conclusion: no violation (unanimously).

(See also Pincová and Pinc v. the Czech Republic , 36548/97, 5 November 2002, Legal Summary ; Velikovi and Others v. Bulgaria , 43278/98 et al., 15 March 2007, Legal Summary ; Petrová and Valo v. Slovakia (dec.), 49103/09 , 5 November 2013)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

To access legal summaries in English or French click here . For non-official translations into other languages click here .