Right of Way by Necessity

Czech Republic: Bought a „locked-in” property? You may well have forfeited the option to seek the necessary right of way

In cases in which the owner of a given piece of real property cannot take enjoyment of it because they lack access from a public road, the situation is resolved by a legal concept known as „right of way by necessity”. The owner of a property without access may ask their neighbor to allow them to cross the neighbor’s land, for proper compensation, and if denied may seek the approval of such necessary right of way by a court.

The institution of right of way by necessity was recognized even by the 1964 Civil Code (Sec. 151o (3)), if in a very fragmentary way, with a terse set of rules that was filled with life by a rich body of case law. The new Civil Code regulates the concept in much more detail, and in so doing expressly enumerates those cases in which a right of way by necessity must not be granted (Sec. 1032). Specifically, the courts will not approve such a necessary right of way if the lack of access was caused in the first place by the owner’s grossly negligent or willful acts or omissions. The question of how to apply this provision in practice has been addressed by the Czech Supreme Court in its decision 22 Cdo 3242/2015 of 15 November 2016.

In that decision, the Supreme Court concluded that the said provision may apply in cases in which someone acquires real property without first securing a connection to public roads or ways, if they acted with gross negligence or willfully. The Supreme Court found that the buyer should as a matter of customary circumspection take interest in the question of how to reach the to-be-purchased property; if no such access is given, they ought to try and arrange for a right of way before completing the acquisition. The Supreme Court did not want to penalize the acquisition of „locked-in” property in and by itself, but rather the buyer’s frivolous reliance on being granted a right of way eventually, either by the neighbors or by the courts, so that they never tried to secure access before they bought the given property. Conversely, if they did make an effort, but unsuccessfully so, this should not be held against them. This ruling by the Supreme Court marks a departure from previous case law, according to which the option of establishing a necessary right of way always existed even if the lack of access to one’s building was the owner’s own fault. It is noteworthy that even transactions which occurred prior to 1 January 2014 are to be assessed pursuant to the said provision.

In other words, when being asked to approve a right of way by necessity in the future, the courts should review whether the buyer took interest in the existence of access to the given real property, whether they knew (or should have known) of the lack of absence, whether they tried to secure such access prior to the acquisition, and whether it was a realistic undertaking to seek such access. The rules addressing the concept of the necessary way of access give only a general outline of the conditions under which owners of real property become entitled to such a way of access, which means that the courts have broad leeway in their decision. It remains to be seen how the courts will read this interpretation, and whether they will still approve rights of way in the future.

Source: Civil Code (Act No. 89/2012 Coll.)



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