The right of way: Costs, rights and obligations of owners

Obligations and rights for owners

If a neighbour can only reach their property through entering a neighbouring property, they must be granted the right to do so. In such cases, there is talk of servient and dominant estates. The servient estate is that which is used for access, whereas the dominant estate is that which is to be accessed by means of the right of way. A distinction must also be made between the right to walk and the right to drive. In the case of a right of way, the path may not be driven on by car. As the owner of the servient estate, one is obliged to allow the neighbour to use the path and may not prevent them from doing so, provided they have the right. The beneficiary of the right is obliged to use the access road with care and to comply with the conditions attached to the right. The latter must also not damage or interfere with the property belonging to the other party. It must be clarified who is responsible for the maintenance of the path. Owners of the path used by the neighbour are usually liable here, but they can claim a share of the costs from the user of the right of way.

Costs for compulsory and voluntary rights of way

With regard to the costs of the right of way, a distinction must be made between the voluntarily granted right of way and the compulsory right of way. The compulsory right of way applies if a neighbour cannot reach their own property by other means and is forced to use the path across another's property. This form of right of way is valid without an entry in the land register. In the voluntary case, the owner freely decides to grant the right of way despite the neighbour's own access. The costs differ here. In the case of a compulsory right of way, the beneficiary of the right may have to pay a so-called compulsory annuity to the owner of the property providing the right of way. This depends on the encroachment of the path by the granting of the right. A voluntary right requires registration in the land register, which is associated with costs for the owner of the servient estate. In contrast to this right of way, there is no entitlement to compensation for use. However, it is possible to set compensation, the amount of which depends on the market value of the property.

Deadlines for special rights and rights of way

Special rights and rights of way cease as so-called easements under sections 875 and 876 of the Civil Code only if they are revoked. This cancellation must be made in writing by the dominant property, i.e. by the person who holds the right of access over the third-party servient property, via a declaration of abandonment. The easement is subsequently deleted from the land register. Whether the right is used or not, however, does not affect its cancellation. Even a sale of the servient estate has no influence on this because the right of way continues to be valid even in the event of a change of ownership. It is possible to limit the right in time and to obtain an extension if necessary. This form of right of way can also expire if the dominant property is divided or merged with another property, thereby creating a new demand that no longer requires the right. However, even in this case it may remain for a partial area of the property or as a compulsory right of way.