Necessary passage

Czech Republic: Methods for establishing necessary passage under the New Civil Code

The New Civil Code has reintroduced the concept of “necessary passage” to the Czech legal environment, by setting forth rules for establishing right-of-law across third-party property in indispensable cases.

The owner of a given piece of real estate may apply for the approval of such right-of-way across a neighboring land plot if it cannot be properly managed or enjoyed due to being only insufficiently connected to public roads and ways. For such necessary passage to be granted, it is not enough that the owner merely wishes a more convenient route of access, but sufficient access must actually be non-existent. The owner of the ‘transit land’ is entitled to consideration for suffering the necessary passage, and may moreover demand to be compensated for the loss/injury thus suffered (unless this compensation has already been included in the said consideration).

Necessary passage as such will be granted by the competent court, which shall also define the scope of such passage (in line with the property owner’s need to take proper enjoyment of their real property at the smallest possible expense). Necessary passage may either be established as a private-law obligation or as an easement – i.e., as a right in rem which requires the owner of a given real property to suffer certain actions (or, as the case may be, refrain from certain actions) for the welfare of another property owner.

The establishment and use of necessary passage must not inconvenience the property owner or infringe upon their land beyond the absolutely necessary minimum. If necessary passage was established in the form of an artificial thoroughfare, then such thoroughfare must be maintained by the beneficiary (i.e., by the party for whose welfare the necessary passage was created).

If the inaccessible real property is surrounded by several neighboring properties, then the necessary passage will only be created across one of them, taking into account the most natural route of access and a minimum amount of disturbance to the owner.

The court will refuse to approve necessary passage if the damage to the servient estate clearly exceeds the benefit derived from the necessary passage, or if the applicant themselves is responsible for the lack of access from public roads and ways on grounds of gross negligence or, worse still, on grounds of deliberate action. Also, no necessary passage may be granted across space that has been closed off for the express purpose of allowing no third-party access, nor across land with respect to which public interest prevents the creation of a right-of-way.

If the grounds for necessary passage no longer exist, the owner of the affected land plot may ask the court to cancel the necessary passage.

Source: New Civil Code (Act No. 89/2012 Coll.), Sec. 1029-1036

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