The purpose of the legal institution of what is known as the easement by necessity is to create a right of way so that real property can be reached from a public road or way. How does this work in the case of apartment units (or commercial units)?
The “new” Civil Code (Act No. 89/2012 Coll.) (re-)introduced the easement by necessity in Czech civil law. Thanks to this legal institution, owners of real property who are prevented from full enjoyment of their title because the property is not connected to public roads and ways are given the option to turn to the courts to seek a right of way (for consideration) across adjacent land plots.
It was principally laudable of the lawmaker to resurrect this type of right of way. The concept is very popular in legal practice, as can be seen also from the sizable body of case law by the Supreme Court (which, to the benefit of property owners, is also quite consistent). In previous rulings, the Supreme Court covered most of the aspects of the easement by necessity: the conditions for establishing this particular type of right of way, its legal status, or how to determine the consideration to be paid to the owner of adjacent land. However, it took a more recent decision for the Supreme Court to address the issue what kind of real property may benefit from the easement by necessity, as we shall see below.
In the case in question, the owner of a unit as the claimant sought the approval of an easement by necessity for the benefit of the said unit, given that the route from public roads to the building in which the unit was located led across the land plots of the respondent. The first-instance court found that the claim had no merit, as the respondent never prevented the claimant from accessing the unit via the land plots in question, and thus dismissed the claim.
The appellate court arrived at the opposite conclusion with respect to the claimant’s capability to access its property: it ruled that the claimant in fact had no direct access to the unit from public roads. However, at the same time, the appellate court concluded that the unit itself was “merely an artificial construct of legal relations”, as opposed to the right of way by necessity which, being a “legal institution of the real world”, could only be granted for “physically existent real property”. The appellate court based this conclusion on a (wrongly applied) decision by the Supreme Court concerning the existence of an easement for the welfare of an entire co-owned piece of property (as opposed to merely a co-ownership share in the same), and found that no easement by necessity could be granted for the welfare of a unit. In so doing, it blatantly disregarded the fact that a unit represents an individual piece of real estate by law.
The claimant did not relent (much to their benefit, as we shall see) and turned to the Supreme Court with an appeal on a point of law, asking for determination whether an easement by necessity could also be created for the welfare of an (apartment or commercial) unit. Of course, the Supreme Court accommodated the appeal, since units are independent real estate under Sec. 1159 of the Civil Code, as mentioned above. This means that the fundamental requirement for granting an easement by necessity was fulfilled in this case – namely, the existence of a real property which cannot be used properly because of the missing connection to public roads and ways.
By this decision, the Supreme Court has done away with any residual doubts that may have existed with respect to the definition of those types of real property for which an emergency right of way may be established. Thanks to this ruling, it is now beyond contention that so-called “units” do qualify as such real property.
Source:
Civil Code (Act No. 89/2012 Coll., as amended)
Judgment 22 Cd0 1373/2024 of the Supreme Court of 28 May 2024