Be Careful with Second-Row Properties — A Neighbor May Deny You Access to Your Own Home

Homeowners without direct access to the street often assume that their neighbor will allow them to cross their property. This can quickly become a problem in the event of a dispute or a sale to a third party if a right of way has not been recorded in the land registry. Even after decades of tacit agreement, there is no customary right to use the property as a path. Those affected, as well as people who wish to buy or build a house set back from the street, should definitely seek legal protection.

Have a right of way entered in the land registry

According to the Federal Court of Justice, a right of way can only arise through a contractual agreement, an entry in the land register, or a statutory right of way. A contractual agreement—that is, a contract—is valid exclusively between the original contracting parties. This means the arrangement is void as soon as one of the property owners changes. A secure, permanent solution is possible only through an entry in the land register of the servient estate, over which the owner of the rear property may walk or drive to their own property in the future. To this end, a notary must certify or authenticate the written consent of all parties involved. This protects both parties and their legal successors from unpleasant surprises.

Never exercise the right of way „just like that“

A right of way may apply if a property temporarily or permanently lacks the necessary access to a public road. This also includes driving across a neighbor’s property to park on one’s own property. Only owners and leaseholders may claim a right of way; tenants may not. In addition, they must provide the owner of the neighboring property with appropriate financial compensation and assume responsibility for traffic safety, snow removal, and de-icing. The right of way applies only if the neighbor has voluntarily consented or a court has ruled accordingly.

A building permit does not replace a right of way

Even if you’re planning to build a house, you must reach an agreement with your neighbors early on. Properties located at the rear of a lot may only be developed if waste management services and emergency responders have safe access via the front lot. To this end, the owner can assume a so-called building easement with the building authority. This obligation is entered in the register of building obligations and is a prerequisite for obtaining a building permit. But be aware: While this public-law building obligation allows for the construction of a house, builders must agree to a private-law right of use to gain access to their own property via the neighbor’s land.

You can also visit the Notary Chamber's online consumer portal at https://ratgeber-notar.de/.