A neighbour has driven across the Israeli land we inherited for thirty years. Can he now claim a permanent right of way?

The plot was surveyed for a sale and the map came back with a graded track running diagonally across it, from the neighbour's gate to the road. The family in Toronto had never seen the plot. The neighbour, when asked, was perfectly calm about it: he has used that track since 1994, everybody knows it, and he is not proposing to stop. Under Israeli law that assertion is not a nuisance. It is a legal claim with a section number behind it.

---

Detailed Answer

An easement (זיקת הנאה, zikat hana'ah) under the Land Law 5729-1969 is a right to a defined use of somebody else's land, or a right that the owner refrain from a defined act. Section 92 allows it to exist for the benefit of neighbouring land, a named person, a class of people or the public, and Section 93 defines the two forms it can take. The provision that worries absentee owners is Section 94: a person who has used a right capable of constituting an easement for thirty continuous years has acquired the easement and is entitled to demand its registration. The same section supplies the defence. A written notice from the owner to the user stating that he objects to the use interrupts the period, and the count starts again. That is the whole doctrine in two sentences, and it explains why Israeli practitioners tell overseas clients that a registered letter costs less than any other step they will ever take on that land. Section 96 adds that an easement runs for an unlimited period unless one was fixed, but that the court may cancel it or vary its terms where it has not been exercised or where the circumstances of its use have changed.

Nothing about this happens automatically at the Land Registry. The neighbour who claims thirty years must prove them, in continuous and open use, and must obtain a declaratory judgment before any registrar will note the right against the parcel. A claim concerning the possession or use of land goes to the Magistrates' Court whatever its value, under Section 51(a)(3) of the Courts Law [Consolidated Version] 5744-1984. For heirs abroad the practical sequence is short and worth doing in order. Pull the נסח טאבו (nesach tabu), the Land Registry extract, and see whether an easement is already registered, because a registered one ends the argument. Commission a licensed surveyor to map what is actually used on the ground against the registered boundaries, since fences and tracks in Israel routinely sit metres away from the parcel line. Then send the written objection by registered post in Hebrew, keeping proof of delivery, and put a copy in the file you will hand any future buyer. Where the land was inherited rather than bought, add one more check: the thirty years can be counted through the deceased's period of ownership, so a track that began in the parent's lifetime may already be closer to maturity than the heirs imagine. This is the same class of pre-sale problem as a neighbour's structure standing inside the boundary, and it belongs in the due diligence a non-resident runs on Israeli property before a sale is agreed rather than after.

In Practice: Section 94 of the Land Law 5729-1969 requires thirty continuous years, and a written objection delivered to the user stops the clock, which is why the letter matters more than the argument. A nesach tabu from the Land Registry and Settlement of Rights Authority costs about NIS 15 online and tells you in a minute whether an easement is already registered. A licensed surveyor's map keyed to the settlement marks runs about NIS 3,800 and takes two to three weeks, while a declaratory claim in the Magistrates' Court to defeat or confirm a claimed easement realistically runs 12 to 24 months.

When to Consult a Lawyer

• You are selling and the buyer's surveyor has found the use. A claimed right of way is a price-reduction argument worth far more than the cost of resolving it, and buyers who discover it late walk away rather than negotiate.
• The neighbour has already applied to register the easement, or has filed a claim. Once a court file exists, silence from abroad is treated as acquiescence, and the defence turns on evidence about the 1990s that only the family can supply.
• The track or pipe serves a property that has since been developed, so the use today is heavier than the use that began the thirty years. That change of circumstances is precisely what Section 96 addresses, and it can convert a losing position into a negotiated relocation.

---

Speak With an Israeli Attorney

We check what is registered against the parcel, put the Section 94 objection on the record in a form that will stand up years later, and run the declaratory claim where a neighbour has already moved to register a right over your land.

Contact us for a confidential initial consultation.