– May 11, 2022

Do we have to grant the neighbor a right of way?

My neighbor wants to build a 2nd house on his property: Since access to the construction site is complicated for him, he demands a right of way across our garage forecourt, which would be much easier for him. But we are against it. Does he have a right to the emergency right of way? How can we defend ourselves? If it is granted, do we receive compensation?

A landowner has a legal claim to a right of way according to Art. 694 ZGB only under strict conditions.  According to the Federal Supreme Court, it can only be asserted if an emergency situation actually exists (BGE 105 II 178 E. 3b). In such an emergency situation is a person who does not have the necessary connection to the public road for the intended use of his property or the existing road turns out to be insufficient (BGE 117 II 35 E. 2).


Prior clarifications

The extent and the type of the necessary measures are not determined by the landowner in need, but by what is necessary for the intended use and cultivation of the affected, inaccessible, property.

If a landowner now wants to claim an emergency road, he must first investigate where the most conducive road would perform. According to Art. 694, para. 2 of the Civil Code, this claim is principally directed against the neighbor who can most reasonably be expected to use the emergency route and against the neighbor for whom the emergency route causes the least damage. If the most favorable route has been selected for the emergency route, the neighbors concerned must be asked for their consent in writing. Like ordinary easements, registration for contractual agreements is also possible in the land register.


Civil action in case of disagreement

If no agreement can be reached, a civil action can be brought. The nature and extent of the emergency right of way are then determined by the judge, taking into account the interests of both parties, in accordance with Art. 694, para. 3 of the Civil Code. The landowner who is burdened by the emergency right of way is entitled to full compensation according to Art. 694, para. 1 CC.

This claim exists because the toleration of the emergency right of way by the grantor of the emergency right of way results in a reduction in the value of his land. There is another possibility for your neighbor to get to his property. This one is more complicated, but not impossible. Therefore, he is not in such a predicament as required by the Federal Court. If you do not find an agreement, the judicial granting of a right of way would therefore be rather unlikely here.


Right to compensation

However, should this still be the case, you would be entitled to full compensation from your neighbor for the shared use of your property. That means: If, for example, a road owned by this neighbor is shared by the person entitled to the emergency right of way, then this person will probably have to contribute a share to the road maintenance. If, on the other hand, a road or path is constructed for the use of the right of way only, the right of way holder usually bears the entire costs.

An article by Reto von Glutz, lic. iur., attorney at law, published as a guide by Luzerner Zeitung.