Scope and limits of the right of necessity: Parking on a ‘landlocked’ residential property
The question of which specific uses are covered by the statutory right of necessity under Section 917 of the German Civil Code (BGB) is the subject of ongoing legal debate. Particularly in cases of so-called landlocked properties that lack direct access to a public road, the issue of parking on such properties has increasingly come into focus. In a judgment published in May 2024 (Case No. V ZR 79/24), the Federal Court of Justice (BGH) has provided clarity on this matter and specifically defined the scope of the right of necessity with regard to parking.
Legal background of the right of necessity
The right of necessity is based on Section 917(1) BGB. It grants the owner of a property that lacks the necessary access to a public road the right to use a path belonging to the neighboring property for customary property uses. In doing so, the interests of both the entitled and the obligated property owners must always be balanced. This particularly concerns to what extent the right of necessity also covers actions that go beyond merely passing through, such as stopping or parking.
BGH decision: Parking as a component of the right of necessity
Facts of the case and the legal issue
In the underlying case, the owner of a so-called landlocked residential property demanded from his neighbor not only the tolerance of the right of passage but also the parking of vehicles on the neighbor’s property. The neighbor objected, citing the exceptional nature of the right of necessity and claiming that this resulted in an unreasonable restriction of his property.
Key statements of the court
The BGH made it clear that the right of necessity can, in principle, also include the short-term parking of vehicles for loading and unloading, as well as mere parking, provided that the use of the landlocked property as residential space would be significantly restricted without this possibility. The decisive factors are, on the one hand, the nature and actual use of the dominant property, and on the other hand, what burdens can reasonably be expected of the obligated property owner in the individual case, and whether alternative solutions would have been reasonable.
Practical implications for property use
The decision takes into account the realities of modern property use and mobility: Given the typical use of residential properties, parking is now regarded as highly significant. The court explicitly emphasized that the owner of a landlocked residential plot must not, as a rule, be denied access that allows moving vehicles for activities such as shopping or doctor’s visits without undue hindrance. Not all types of parking, however, are covered by the right of necessity—in particular, the permanent parking of multiple vehicles or the use as a parking lot for third parties regularly exceeds the boundaries of the right of necessity.
Balancing: Reasonableness and the protection of interests
Interests of the servient property
The right of necessity is an exceptional right. The powers granted to the exerciser must be both proportionate and necessary in relation to the burden imposed. The use of the right of necessity must not place a substantially greater burden on the servient neighboring property than is necessary for the proper use of the landlocked property. The threshold for unreasonable restriction is typically reached when parking goes beyond mere short-term stopping or impedes the owner’s own use of the servient property.
Uses in individual cases
According to established case law, it must be examined on a case-by-case basis which specific uses are covered by the right of necessity. The decisive factors include, in particular, the local circumstances, the use of the affected properties, and the extent of the impact. A comprehensive assessment of the facts is essential in order to appropriately determine the rights and obligations of both parties.
Note on ongoing developments
The aforementioned judgment is an important impetus for the legal handling of the right of necessity; however, case-by-case assessment remains central. It is advisable to avoid hasty action in the event of disputes and to consider court rulings as guidance without losing sight of the specific circumstances. It has not yet been finally determined what impact the judgment will have in comparable cases on a broader scale.
Source reference
The information presented is based on the judgment of the Federal Court of Justice dated May 24, 2024 (Case No. V ZR 79/24), published at https://urteile.news/BGHV-ZR-7924Notwegerecht-umfasst-auch-Parken-auf-gefangenem-Wohngrundstueck~N35079
The differentiated consideration of the scope of the right of necessity in current case law illustrates the complexity of civil law regulations in neighborly relations. For legal questions regarding rights of necessity and adjacent property use rights, the Rechtsanwalt of MTR Legal Rechtsanwalt are available to provide individual legal assessments.
