No Civil Law Rights of Way in Case of Access Easement – Federal Court of Justice Ruling and Its Implications
In its judgment of March 28, 2024 (Ref.: V ZR 51/24), the Federal Court of Justice clarified the boundaries of the access easement in German real estate law in a landmark decision. Central to the case was the much-debated question of whether, and to what extent, the public law easement known as the ‘access easement’ can grant civil law rights of way to private neighboring landowners. This scenario brings building regulations into conflict with the private law rules of neighbor law—a tension of considerable practical importance for property owners, project developers, and investors alike.
Background of the Access Easement
Public Easements and Their Function
An easement is a public law obligation by which the owner of a property agrees to perform, tolerate, or refrain from certain actions vis-à-vis the building authority to comply with building regulations. The access easement is a specific form, ensuring access to a building plot via an adjacent property if direct connection to the public road network is lacking or insufficient. In this regard, the access easement serves to fulfill legal requirements for site development (§ 4 BauO NRW and comparable provisions in other federal states).
No Immediate Civil Law Right of Way
Despite the effect of the public law easement, particularly the access easement, it should be noted that this generally does not confer a private right of use in favor of third parties (such as the owner of the benefited property). The permission for access merely secures the building law admissibility of a construction project, without automatically granting a right of way under the German Civil Code (§§ 1018 et seq. BGB).
The Decision of the Federal Court of Justice
Case Scenario and Grounds for the Decision
In the case decided by the Federal Court of Justice, the purchaser of a property demanded the granting of a right of way in the civil law sense on the basis of an access easement registered for the neighboring property. After thorough examination, the court made it clear that no independent civil law right of way results from the access easement under building law. Rather, the registration of an easement or the conclusion of a private contractual agreement is required to grant the third-party owner a secure right of access.
Implications for Property Owners and Easement Beneficiaries
The decision emphasizes the principle of separation between public building law and private law. While building regulations examine the conditions for building permits using the access easement, the relationship between private neighboring property owners and their rights to use the property remains within the distinct sphere of civil law. Only expressly granted real rights, particularly easements (§ 1018 BGB), provide correspondingly secured effects vis-à-vis third parties.
Practical Consequences and Risk Factors in Property Transactions
The decision highlights the risks that can arise from equating building regulation and civil law authorizations. Particularly in connection with property transfers, development measures, or project planning, clarification is needed: Without explicit registration in the land register, the actual possibility for mutual use of properties remains legally vulnerable. Existing easements may secure essential prerequisites for building projects, but they do not provide the builder or property buyer with an assignable or enforceable claim against the owner of the encumbered property.
Significance for Planning and Investment
Coordination of Public and Private Rights
For companies, investors, and project sponsors, careful alignment of building law and civil law aspects during the planning process is essential. The differing scope of easements and civil law rights of way require targeted coordination—for example, by creating servitudes, concluding contractual agreements, or making arrangements for the use of shared areas. Otherwise, inadequately secured rights of use can lead to significant delays and economic disadvantages.
Requirements for Contract Drafting and Due Diligence
According to the Federal Court of Justice’s decision, potential users and purchasers of real estate projects should always examine existing easements and private law entries separately and, where necessary, aim for supplementary agreements. Especially in transactions, financings, and project developments, early and expert review of property rights is essential in order to ensure legal and economic security.
Summary and Outlook
With its recent decision, the Federal Court of Justice has drawn a clear line regarding the distinction between public law and private law rights in the context of the access easement. The entry of such an easement does not grant any civil law claim to use the encumbered property on behalf of third parties. In practice, in real estate law, project development, and property transactions, a differentiated consideration and legally secure structuring of rights of way are indispensable to avoid later conflicts or loss of value.
Should further legal questions arise in the assessment, negotiation, or securing of property rights in connection with access easements, specialized advice can help to identify economic and legal pitfalls with well-founded expertise at an early stage. The Rechtsanwälte of MTR Legal have extensive experience in all areas of real estate and property law and are available for additional information.
Source: Federal Court of Justice, Judgment of 28.03.2024, Ref.: V ZR 51/24
