Mgr. Hedvika Hartmanová answers our reader’s question on rights of way.
“I am the owner of several plots of land which together form a single area. However, in the middle of this area lies a plot belonging to another owner, on which a building stand. A right of way has been established at the expense of my plots (with the exception of one) in favour of this other owner’s plot. Can I erect a fence with gates along the boundary, i.e., around all my plots?”
An easement restricts the owner of a plot of land in favour of another owner, such that the former must tolerate the exercise of a specific right by a third party. In the case mentioned here, this involves the obligation to tolerate the authorised person walking or driving on one’s own plots of land. An easement for walking and driving (referred to as an ‘easement’ under the new Civil Code) may be attached either to a specific person or to the owner of the property in whose favour the easement was established. If it is attached to a person, only that person may exercise the easement, and the right expires upon their death. If the easement is attached to the property, it always passes to the new owners.
I assume that in your case, the right of way and right of passage are registered as an easement in the relevant land register. In this case, you may fence off your land, provided that the owner of the property in whose favour the easement was established is still able to exercise the resulting right without hindrance. If lockable gates or doors are installed as part of the fence, these must either remain open or the keys to the lock must be handed over to the entitled owner. If this owner is prevented from exercising the right of way and right of passage across the land encumbered by the easement, they are entitled to claim damages from you, as the party subject to the easement, for the breach of your obligations. Such damages would be enforceable in court and would, of course, have to be proven. It might also be possible to bring an action for an injunction against your actions (erection of the fence) if this were to make it impossible for the entitled owner to exercise their right of way and right of passage.
The above does not apply to plots of land that are not subject to an easement. You may fence these in as you wish and deny access to third parties. However, if a plot of land not subject to an easement is significant for the exercise of a right of way or right of passage, the entitled person may apply to the competent court for the establishment of a right of way or right of passage over that plot. The court will assess the extent of the needs of the owner without access, as well as the necessity of an access road across the property in question. Should access be lost due to the absence of an easement, it may also be established by court order across a property not previously encumbered by an easement.
In connection with rights of way and rights of passage, it should also be noted that an easement is established either in return for a one-off payment or for a regularly recurring fee. Furthermore, it is important that the entitled person may be obliged to contribute to the costs of maintaining the path. These payments may, if necessary, be enforced through the courts.