Real Estate Flash/Focus
1. 6. 2018
Authors: Martin Fučík, Albert Tatra, Adam Karban
The concept of right of way by necessity in Section 1029 et seq. of the Czech Civil Code1 provides for the right of a real estate owner to seek access to their property from a public road, and their ability to secure sufficient connection between the public road and the property for the purpose of its proper use by the owner. In a situation where such sufficient connection of a public road with immovable property is not secured, the Civil Code, contrary to the previous civilist approach, provides more comprehensive and broader rights to the owner to secure such access. However, this concept may pose serious risks to developers and purchasers of large developable areas, which should be thoroughly examined during land acquisition due diligence investigations, and duly reflected in acquisition negotiations.
The right of way by necessity undoubtedly constitutes a restriction of the ownership right of the owners of the affected land plots, and potentially also a major limitation of the ability to freely deal with those land plots. The form and content of way by necessity can of course be always agreed on with the owner of a land plot with no access; however, if the parties fail to privately agree on the establishment of an easement by necessity, it is possible to ask competent courts to order the right of way by necessity based on an action of a property owner who has no access to a public road. The risks entailed in judicial proceedings include a limited ability to influence the extent and form of the easement by necessity granting the right of way across the servient land, as those parameters of the easement by necessity are solely at the court’s discretion.
However, the applicable law stipulates rather strict conditions on which the establishment of easement by necessity affecting adjacent land plots can be sought; the fundamental condition here is that the property is not connected to a public road and the property owner is thus prevented from properly using their real estate. Hence, easement by necessity cannot be established by court order in a situation, for example, where a way (access) already exists and the property owner merely seeks a more comfortable and advantageous2 access.
A situation may occur in practice where, in the middle of an area of interest, small residual land plots are fully surrounded by land owned by a third party, i.e. a person other than the owner of the surrounding land plots. This situation is quite frequent especially in big cities which still offer large areas, that have been unused for a long time, for development. This has become more frequent recently as we witness constant urban building densification coupled by on-going boom and activity in the real estate market. As a rule, such set-up and position of land plots have not been dealt with by owners of land without access to public roads (i.e., owners of residual land), because those owners did not have to overcome any obstacles to be able to use their land as the adjacent land was not developed and in fact allowed them free access (regardless of whether or not they had proper legal title to so use the adjacent land). Such residual land plots are typically owned by various operators of utilities and infrastructure who need access from a public road for the purpose of maintenance of the structures and utilities installed there.
In the case of acquisition of land for development, we recommend examining whether the area of interest does not contain any land plots of this kind which in the future might pose a risk of lack of direct access from a public road, and thus a risk that the owners of the land plots concerned might demand the establishment of easement by necessity. Indeed, the demand to establish an easement by necessity can affect the execution of the contemplated project on the land to be acquired. For example, this may involve a situation where, due to such a demand, the project will need to be modified so that the way by necessity can be established, which may have an impact on the financial yield of the whole acquisition, in particular if the project had to be modified in terms of size or layout. Such an interference may be considerable, due in particular to the rather broadly defined extent of easement by necessity as set out in the explanatory memorandum to the Civil Code, stipulating that “at present, sufficient connection to a public road can be deemed to exist if access is possible by motor vehicles; way by necessity has to be established at least to an extent allowing the beneficiary to pass through with an automobile”. At this point, however, it is necessary to add that the Civil Code affords strong protections to the owners of the affected land plots against the establishment of easement by necessity, embodied in Section 1032 of the Civil Code, and its letter (a) in particular, stipulating that: “A court shall not authorise way by necessity if the damage to the neighbour’s immovable property apparently exceeds the advantage of the way by necessity.”
In conclusion, we would add that the risk of establishment of way by necessity applies to the land directly adjacent to the property concerned (i.e., for example, land plots in the centre of the area of interest), and also to all land plots across which the way by necessity has to lead in order to connect the property concerned with a public road. The subject matter of pre-acquisition due diligence investigation should include not only verification of whether the property concerned has access to a public road, but also whether in or near the area of interest there are any immovable properties which might pose the risk that right of way by necessity will need to be established over the property to be acquired.
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