Commercial considerations do not justify granting access via private road
Time and time again, stories appear in the newspapers about how property owners find themselves in a situation where the road leading to their property exists, but there is no right to use this road. The interests and visions of the neighbours are contradictory, and the disputes get heated. However, the use of a road is only lawful if the road is in public use or if an agreement has been concluded with the owner of the road, and that agreement is also entered in the land register.
If there is no right to use the road but there is a need for it, the issue of granting access will be solved by the court. The basic prerequisite for granting access is the lack of available access from a public road under the Law of Property Act. In addition, in exceptional circumstances, it may also be justified to grant additional access in situations where the applicant’s immovable property is accessible from a public road. For example, if it is not possible to use the immovable property (or the building located there) for its intended purpose without additional access.
However, in a recent judgment of the Supreme Court, the Supreme Court clarified what does not fall under these exceptional circumstances. That is on the surface of the next debate. On the border of the applicant’s property is a car weighinghouse, which has been used bilaterally since the construction of the building (for decades) – i.e. the weighing house is passable. Trucks drive in with the load, weigh it and then drive straight out of the weighing house. However, to use the weighing house bilaterally, it is necessary to exit the weighing house over the (road) property belonging to the neighbor. An earlier property neighbour allowed and tolerated it. The applicant thought that since the weighing house had been used in this way all the time, access should be determined. And for free. It is outrageous that trucks should reverse out of the weighing house. Also, reversing and manoeuvring trucks is more dangerous than passing through the weighing house.
The owner of the road objected because he considered that the house could also be used one-sided. There is enough space in front of the house for the trucks to reverse out. Although it is obvious that the bilateral use of the weighing house is more convenient and faster for the applicant (trucks do not have to reverse) and therefore more economically profitable (since it is therefore possible to serve customers faster), the determination of access cannot be justified by expediency and commercial consideration. Same way, the owner of a shopping center, whose best use of the shopping center requires the parking of a neighboring property to his customers, may request that access be granted for this purpose. However, this would not be conceivable, because it still requires an agreement (commercial) between the property owners.
The county court and the circuit court agreed with the applicant, finding that the applicant’s interest in achieving the most profitable and commercially efficient use of his immovable – the bilateral use of the weighing house is more convenient, faster and efficient – justifies the granting of additional access.
The Supreme Court annulled the judgments of both the county and the circuit court, explaining that the prerequisite for the determination of the access to another’s immovable cannot be based solely on the commercial interest of the company in using its immovable property and the buildings located there in as profitably as possible. For legitimate reasons, requesting additional access in a situation where the intended use of immovable property and a building on it is not excluded without additional access (the weighing house could be used one-sided, but not equally profitably), is not equivalent to a situation where additional access is requested on the grounds that the building, part of it, etc on the immovable property cannot be used for its intended purpose without additional access.
It is now clear that, for commercial reasons alone, it is not possible to obtain additional access to foreign immovable property. To do this, however, an agreement must be reached with the owner of the neighbouring property. This is also the case when it comes to road property and this property has been used in this way all the time in the past. Tolerating such use by the previous owner of the immovable will not replace the servitude agreements necessary for that purpose.
Anneli Aab/ LEADELL Pilv Law Office attorney-at-law