In judicial practice, disputes arising from the construction of infrastructure, particularly electric power facilities, on private land are still often based on an incorrect legal qualification of the property owner’s claim. Instead of correctly viewing the claim as compensation for the establishment of a real easement within the meaning of the Law on the Basic Principles of Property Relations, it is frequently framed as a claim for damages. This approach is not only theoretically incorrect, but also has direct practical consequences, primarily with regard to the application of limitation rules.
Compensation for the establishment of a real easement does not constitute damages for unlawful conduct, but rather fair monetary consideration for a permanent or long-term restriction of ownership rights. Its legal basis is not tort liability, but the very constitution of a real easement over another person’s immovable property. Precisely for this reason, the issue of limitation must be considered in light of the legal nature of the easement and the moment from which it is factually and legally exercised.
Judicial Practice on the Limitation Period and Its Commencement
The Supreme Court recently took the position (Judgment Rev 5722/25 of 7 May 2025) that a claim for compensation for a real easement established by the construction of an electric power facility is subject to the general ten-year limitation period prescribed by the Law on Obligations. This position has essentially been accepted in practice. However, the key disputed issue remains the moment from which this period begins to run.
According to the court’s view in the cited judgment, limitation cannot commence before the electric power facility has been lawfully put into operation, that is, before an occupancy (use) permit has been obtained. The court proceeds from the premise that, under the Law on Planning and Construction, a facility may be used only after an occupancy permit has been issued, confirming that it was built in accordance with the building permit and that it meets all prescribed technical and safety requirements.
However, according to the legal opinion adopted at the session of the Civil Department of the Supreme Court of Cassation on 23 January 2017, limitation is calculated from the moment the electric grid or energy facility is put into operation, regardless of whether an occupancy permit has been issued. On the basis of this position, courts in the previous period rendered decisions by taking into account the moment of commissioning and, for that purpose, conducted evidence relating to the factual use of the facility. The recent change in the Supreme Court’s position therefore introduces legal uncertainty.
Problems With Tying the Commencement of Limitation to the Occupancy Permit
Although the court’s effort to link the commencement of limitation to a lawful status is understandable, such an interpretation raises serious legal issues. In practice, the use of the servient property begins when the electric power facility is put into operation, that is, when it is factually brought into use, regardless of whether an occupancy permit has been obtained.
An occupancy permit does not create the right to use another person’s immovable property, nor does it itself constitute an easement—it merely confirms a certain legal status of the facility from the perspective of planning and construction regulations. On the other hand, the burden on the property owner arises at the moment the facility begins to be used, since that is when an actual and permanent restriction of ownership occurs.
An additional problem lies in the fact that, in practice, a significant period of time often elapses between the beginning of factual use of the facility and the obtaining of an occupancy permit, and it is not uncommon for an occupancy permit never to be issued at all. If the commencement of limitation were without exception tied to this formal act, a logical question arises: would that mean that a claim for compensation for an easement in such cases would never become time-barred? The answer to this question, of course, must be negative.
Limitation is a legal institute based on the assumption that the creditor has an objective possibility to exercise their right, but fails to do so within a reasonable time. Tying the commencement of limitation exclusively to the obtaining of an occupancy permit—an act over whose issuance the owner of the servient property has no influence—leads to legal uncertainty and essentially undermines the function of the limitation institute.
Concluding Considerations
For the above reasons, the issue of the commencement of the limitation period for compensation for the establishment of a real easement should not be resolved by mechanically linking it to the date of issuance of the occupancy permit.
Instead, the starting point should be the moment when the easement began to be factually exercised, that is, when an actual restriction of the property owner’s ownership rights occurred and when the conditions were met for the owner of the servient property to claim compensation on that basis.
The occupancy permit, on the other hand, may be relevant as evidence of the lawfulness of the facility, but not as the sole or decisive criterion for the arising and maturity of a claim for compensation for an easement.
This article is to be considered as exclusively informative, with no intention to provide legal advice. If you should need additional information, please contact us directly.
Authors:
Ivana Ruzicic, Managing Partner,
ivana.ruzicic@prlegal.rs
Nikola Brankovic, Junior Associate,
nikola.brankovic@prlegal.rs