The owners of a house in a vacation home development file a lawsuit against their neighbor and demand the granting of a right of way and thus permission to use the access road to their property with their car (AZ V ZR 268/19). The access road is a road that runs along the neighboring property. The concept of the housing estate provides that the properties can only be reached via an 80-meter-long pedestrian path. This branches off from the main road and motor vehicles are not allowed to use it.
Numerous parking facilities are located on the road running through the settlement. Likewise, there is a parking lot at the entrance to the settlement. It is true that the previous owner allowed access via the road running along his property. The new owner, however, closed the road after taking over the house and numerous failed negotiations. According to the court ruling, the plaintiffs are not entitled to the granting of a right of way. The lawsuit was rejected.
According to Section 917 of the German Civil Code, a right of way outside the agreements in the land register can only be applied if both parties agree. If, for example, the previous owner tolerated the use of the access road, this does not mean that the new owner is obliged to tolerate it. A new agreement would have to be reached in this case. Even if normally to a proper use of a residential property the access to the property with a motor vehicle must be guaranteed in accordance with § 917 paragraph 1 BGB. there are exceptions. In this case, the planning concept of the housing estate was designed from the outset in such a way that the individual plots may not be accessed by a passenger car.
Source: BGH
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