Right of way
November 2, 2014 | 50,00 EUR | answered by Jan Wilking
Is it possible to revoke the right of way and passage?
We have a neighboring property of about 1000 square meters, which can only be accessed through our 3-meter-wide path. The property is to be sold, but has not been designated as building land for 35 years. Numerous building applications have been rejected. We do not want to grant an easement. A right of way and passage was granted by the previous owner through a notary. Now the current owner (over 80 years old) is in financial trouble and wants to turn it into building land by, for example, obtaining the easement elsewhere. According to my calculations, it would be a crazy 120 meters to the nearest public point. Assuming he obtains his easements from someone, can I then revoke his right of way and passage? If he can get his utilities from elsewhere, can't he also obtain a new access route as a right of way? Do I still have to tolerate construction trailers? The construction trailers are supposed to drive where he obtains the easement. Additionally, we all have water problems here and our basements often flood. The property has always served as a water catchment area. If construction actually takes place, the water will be so restricted that we will likely be submerged during heavy rainfall.
Dear inquirer,
I am happy to answer your inquiry taking into account your description of the situation and your input as follows:
In general, an easement cannot simply be unilaterally revoked. Even if the right of way in question was only contractually agreed upon (and not secured by a property easement, for example), termination would only be possible if it is provided for in the contract or if there is a valid reason (e.g. improper use of the easement). The mere possibility of an alternative access to the property is therefore not usually sufficient.
The easement must be exercised in a manner that is as least intrusive as possible, see § 1020 of the German Civil Code. However, construction vehicles must be tolerated to a certain extent if necessary, see Federal Court of Justice decision of June 9, 2011 - V ZB 293/10. If such use is not explicitly provided for in the right of way and the owner has an alternative access route, the use by construction vehicles may not be considered least intrusive and could be prohibited.
Your concerns regarding the construction can also be raised in the context of the building permit process. Building law provides for what is known as third-party protection, to prevent any disturbances and protect the neighbor of the property to be built on. If a construction would lead to such disturbances on your property, the building permit may be denied or only granted with certain conditions.
I hope this provides you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up question function.
Best regards,
Jan Wilking, Attorney
