What to do if a crucial access way leads across land owned by multiple parties?

Last March, the Supreme Court, in a procedure on an appeal on a point of law brought by a defendant who had been ordered by the lower courts to suffer a right of way across his land, dealt with a question not previously addressed by the judiciary: that of the standing to be sued in proceedings over the establishment of a necessary right of way.

Based on a lawsuit brought by the claimant, the first-instance court and, in the appeals, the appellate court, granted a right of way across the land plots owned by the defendant for the welfare of the claimant as the owner of a building of which the claimant was unable to take full enjoyment, due to its insufficient connection to public roads. The defendant filed an appeal on a point of law against the judgment of the appellate court in which they raised four arguments for the appeal; no fewer than three of them were found admissible by the Supreme Court.

Two of them (i.e., a point of defense concerning the fact that the insufficient accessibility of the building had been caused by the claimant themselves, and a point of defense concerning the form and amount of the consideration to be paid for granting the right of way) were found admissible in that the appellate court had deviated from the Supreme Court’s previous practice. The third defense accepted by the Supreme Court, which concerned the standing to be sued in disputes over a right of way, was found to be admissible because it turned out that the question had never before been addressed, the fairly sizable body of Supreme Court case law on rights of way notwithstanding.

This may have to do with the facts of the case at hand, which were rather out of the ordinary: The claimant’s building was cut off from the public road by land plots owned by several different parties – a situation which the authors of the Civil Code had failed to anticipate. Even so, in their lawsuit, the claimant had sought a right of way strictly with respect to the land plots owned by the defendant; as to the land plots between their building and the public road belonging to third-party owners, they referred to “other arrangements” by which they had secured access for themselves. The claimant submitted no proof for this during the evidentiary procedure, but merely asserted it as fact.

In defense against the lawsuit (and also in the appeal to the Supreme Court), the defendant argued that the claimant should have sued all owners of land plots needed for access to the building. The Supreme Court agreed in principle, and found that if a court grants a right of way, the result must be that the basic condition which gave grounds for a lawsuit for a right of way in the first place then no longer exist – i.e., the lack of a connection between a property and the public road network. It follows, says the Supreme Court, that in those cases in which the land plots of several owners lie between the inaccessible property and the public road, the claimant must:
1. either sue all those owners, in a single lawsuit heard in a single procedure; or
2. show (as opposed to merely assert) in the procedure, by way of evidence, that access across the land plots owned by those parties who were left out of the lawsuit has been secured based on a different legal title (such as a lease agreement or an agreement on the establishment of an easement).

In this manner, the Supreme Court has made a valuable addition to the body of its case law on rights of way, in the form of a solution to a question which the lawmaker had never considered, whereas this solution appropriately reflects the true essence of the legal concept of right-of-way.


Judgment 22 Cdo 1826/2020 of the Supreme Court of 10 March 2021
Sec. 1029 through 1036 of the Civil Code

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