On the prerequisites for granting a right of access to real property

Yet again, the Supreme Court looked into the prerequisites under which a right of way may be granted for necessary access, with a particular view to the parameters of an existing connection of the property in question to the public roads, taking into account the personal situation of the property owner.

The Semily District Court and, subsequently, the Hradec Králové Regional Court had accommodated a claim for the creation of a right of way by easement (access by foot and by motorized vehicle) even though the claimant’s real property had already been connected to a public road via a footpath leading to the claimant’s land plot.

The defendants challenged these decisions by bringing an appeal on a point of law before the Supreme Court, asking among other things the following questions:

1. whether the basic right of the owner of the adjacent property may be restricted for a better connection (access) to the land plot from public roads; and
2. whether the personal circumstances of the claimant (property owner) can give cause for the establishment of a right of way (easement) by foot or by motorized vehicle encumbering a piece of real property (the neighbor’s land) for the welfare of the claimant (and all subsequent owners of the entitled property).

In response to the first of these questions, the Supreme Court reminded the appellants that the statutory prerequisite for granting a right of way by easement is not the non-existence of any connection between the real property and the public roads, but merely the non-existence of a sufficient connection which allows for the proper use and enjoyment of the real property in question.

It is then upon the court to decide whether an existing connection is in this sense insufficient or whether the claimant merely seeks to attain a more comfortable connection. In the case at hand, the existing footpath – which, given the complex terrain, could not have been transformed into a passable route for motorized vehicles – was found insufficient by the courts, based upon an onsite inspection, among other things. The footpath did not allow for even the most basic use and enjoyment of the real property by the claimant (personal transport, or the delivery of purchases or of heating fuel).

Related to these parameters of the footpath is the solution to the second of the above-mentioned questions found by the Supreme Court: As the justices reminded the appellants in the decision, the Supreme Court had already previously arrived at the conclusion that the personal circumstances of the person seeking a right of way by easement must be assessed with a view to the objective circumstances in the individual case. Society is not composed exclusively of individuals of average age and health, but also of senior citizens, handicapped people, or families with small children.

In the case at hand, the claimant had indeed been a person of retirement age suffering from limited mobility issues, whereas the lower-instance courts found that the existing footpath, leading through challenging terrain, could under no circumstances have been considered a sufficient connection to the network of public roads and ways.
Given that the Regional Court had not deviated from the previous decision-making practice of the Supreme Court regarding the above questions, nor otherwise been at fault when it decided on the claimant’s lawsuit, the Supreme Court rejected the defendants’ appeal as inadmissible.

Resolution 22 Cdo 752/2021-488 by the Supreme Court of 13 December 2021

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