A neighbour who has been crossing your yard for twenty years, a parking space another owner is entitled to use, a landing you are not allowed to close off: in Israel these situations stem from a discreet but formidable property right, the Zikat Hana’a (זיקת הנאה), or easement. It does not always appear on the land registry, it survives the sale, and it binds the buyer. Here is how to recognise it and protect yourself before signing.
I. A right to use someone else’s property, without the right to possess it
Section 5 of the Land Law (Hok HaMekarkein (חוק המקרקעין), 1969) defines an easement as an encumbrance on real property for the benefit of another, allowing that person to derive a benefit from it without any right to possess it. That is precisely what distinguishes it from a lease: the beneficiary does not occupy the property, he uses it.
An easement may be created for the benefit of another plot — the benefited land, Mekarkein Zakaïm (מקרקעין זכאים) — for the benefit of a named person, of a class of persons, or even of the public at large. In Israeli practice it most often takes one of these forms:
- a right of way, on foot or by vehicle, across a yard, path or ramp
- a right to park on a space the beneficiary does not own
- a right of access to a roof, a basement, utility meters or technical installations
- a right to run pipes, cables or a service duct through the property
- a negative obligation imposed on the owner: not to build, not to add a storey, not to block an access
II. The four ways an easement comes into existence
Identifying how the easement arose is decisive, because the possibility of challenging or removing it depends on that origin.
- By agreement: the owners concerned create it contractually, and the agreement must be registered with the Land Registrar, the Rasham HaMekarkein (רשם המקרקעין).
- Through the condominium bylaws: in a condominium building, the Takanon (תקנון) of the Bayit Meshutaf (בית משותף) frequently attaches a parking space, a storage room or roof access to a specific unit by this mechanism.
- By court order: where a plot has no reasonable access to a public road, the court may order the registration of a right of way between the neighbouring plots.
- By long use: the most dangerous route of all, because it bypasses the registry.
III. The thirty-year trap
Section 94 of the Land Law sets out a rule many foreign buyers discover too late: a person who has exercised, for thirty consecutive years, a use capable of constituting an easement has acquired that easement and is entitled to demand its registration. The use must have been continuous and visible, and exercised as the exercise of a right; written objection by the owner interrupts the running of time.
What makes this distinctly Israeli is that the mechanism also applies to settled land, Mekarkein Mussdarim (מקרקעין מוסדרים), even though acquisitive prescription is in principle excluded there. The practical consequence is significant: a fully constituted right may exist without appearing on the land registry. A buyer who relied on the registry extract alone may discover, after taking possession, that a neighbour holds an enforceable right of way.
Whether such an unregistered easement can be enforced against a good-faith purchaser who relied on the registry is a debated question that turns closely on the facts of each case. All the more reason to address the issue before signing, rather than before a judge.
IV. The checks to carry out before signing
- Obtain a land registry extract, the Nessah Tabou (נסח טאבו), and read the section listing easements and third-party entries carefully.
- Obtain the condominium bylaws together with the attached plan: this is where rights attached to parking spaces and ancillary areas are recorded.
- If the property is held under the Israel Land Authority or managed by a Hevrat Meshaken (חברת משכנת), request that body’s file, as the registry does not always reflect the true position.
- Inspect the site: a path worn into the grass, a gate opening onto the neighbour’s land, a cable crossing the façade, meters reachable only from another property — all are signs of long-standing use.
- Put your questions to the seller in writing and have the answer recorded in the contract as an express representation that no unregistered easement exists, backed by a warranty.
V. For sellers: clearing an easement before going to market
An easement is in principle granted for an indefinite period, unless a term has been agreed. The court may nevertheless cancel it or vary its terms, in particular where it is no longer exercised or where circumstances have changed. The consensual route remains the fastest: an agreement to release the easement, if necessary against consideration, followed by registration of that release.
Anticipating the issue has a direct financial value. An unresolved easement depresses the price, delays the transaction and may jeopardise the buyer’s financing, since Israeli banks examine closely any encumbrance affecting the property offered as security.
Conclusion – Why work with a lawyer on Israeli real estate matters?
An easement is the textbook example of a right that never appears in a property listing. Detecting one requires cross-checking the registry extract, the condominium bylaws, the plans, the files held by the land authorities and the actual state of the site, then translating the findings into the drafting of the contract. For a buyer based abroad, who visits rarely and seldom reads Hebrew, that verification can realistically be entrusted only to counsel. It is at this stage — before signature — that a lawyer costs the least and protects the most.
With this in mind, the law firm ABITBOL & ASSOCIES, drawing on its expertise in Israeli and international real estate law, assists its clients at every stage of verifying the rights that burden a property in Israel. Our lawyers make sure your interests are protected and that every step is completed in full security.
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