Mgr. Hedvika Hartmanová answers frequently asked questions from our readers regarding the relationship between buildings, land and access roads.
“Two years ago, I inherited a weekend cottage in a holiday village from my mother. We have discovered that the access road to the village is owned by a private individual who is now demanding a fee from us for its use. How should we proceed to ensure that the access road can continue to be used?”
Your case is very common. First of all, it should be clarified whether the access road is classified as a so-called ‘public access road’, which may also include a dirt track. Please contact the road authority, which maintains a register of public service roads. If it is established that your access road is officially registered as a public service road, you may continue to use it free of charge.
A service road is created directly by law, one of the requirements being that the road in question has been used as a thoroughfare by an indefinite number of people over a prolonged period. The consent of the landowner on whose land the service road runs is generally given tacitly (implied), meaning that the owner accepts that their land is used by the public as a route. According to a ruling by the Czech Constitutional Court, such implied consent is also binding on future purchasers of the land.
If the access road to the weekend housing estate is not designated as a public access road, you may contact the competent road authority and apply for the road to be designated as a public access road. In doing so, you must demonstrate to the authority what legal interest you and the other owners of the weekend homes have in the designation of the public access road. If the authority determines that the conditions are met, it will decide on the service road. Once this has been established, the landowner on whose land the road runs can no longer unilaterally decide whether access to the road is restricted.
In the event of a negative decision by the road authority, it is necessary to negotiate with the owner of the land in question and conclude either a lease agreement or an agreement establishing an easement, which specifically includes the right to walk, drive and use the land as a path. As a last resort, the legal dispute can be settled in court; however, this is not recommended, as such proceedings can take several years and the outcome is uncertain. Naturally, another solution is to purchase the land from the problematic owner, although in this case it is to be expected that the current owner will demand an unreasonably high purchase price and attempt to exploit the situation to their advantage.
We would like to build a family home for our son on an abandoned plot of land adjacent to our garden. The neighbour refuses to sell the plot but has offered to grant us a leasehold on the land in question. What would this mean for us?
The essence of a leasehold right is that the landowner grants the leasehold right as a right in rem on their land in favour of another person, the builder. This person is entitled to erect a building on the land and enjoys the same rights as an owner, in particular the right to use the building, including the land. The leasehold can be granted for a maximum of 99 years and must be entered in the land register. It can be inherited, transferred or, for example, used as security for a mortgage. Conversely, the property remains encumbered by the leasehold even if there is a change of ownership.
The leasehold right may be granted either for a fee or free of charge. Payment may be made as a one-off sum or on a recurring basis in the form of monthly or other instalments. In the case of recurring payments, an inflation clause may also be agreed, allowing for future increases in the payments.
The granting of the leasehold also gives rise to a mutual right of first refusal between the landowner and the leaseholders. If you wish to sell the family home built for your son at a later date, you would first have to offer it for sale to the landowner before it can be offered to a third party. However, the right of first refusal can be excluded in the contract granting the leasehold. Furthermore, the duration of the leasehold and all other issues arising during its term in connection with its exercise can be regulated by contract.
Upon expiry of the leasehold, the owner of the land becomes the owner of the building and pays the builder or the holder of the leasehold compensation amounting to half the value of the building at the time the leasehold expires. The amount of compensation may also be agreed upon differently, for example at market value. In practice, a leasehold represents a ‘weaker’ safeguard of rights to the land than the acquisition of ownership itself. It is particularly suitable for temporary structures, such as wind or solar power plants with a limited lifespan, or for simple buildings in areas that are, for example, at risk of flooding. In the case of a family home, I would always prefer the purchase of the land to the establishment of a leasehold.