Emergency right of way and access to the building plot: when the court grants a route

The emergency road is regulated in the Emergency Road Act, which dates from 1896 and remains in force to this day. It allows the grant of a right of way over a third party’s plot where a property lacks the connection to the public road network necessary for its cultivation or use. The emergency road can be a footpath, a livestock trail or a carriageway.

The requirement is first the lack of a necessary road connection. It is not enough that the existing connection is uncomfortable or longer. In addition comes a balancing: the benefit of the emergency road to the property in need must outweigh the disadvantage to the burdened plot.

The owner of the burdened plot is entitled to compensation for the burden. This compensates for the disadvantage that arises through the use. The court decides on the amount, often with the help of experts.

The act draws clear limits to the emergency road. It is not granted where the lack of the road connection goes back to gross negligence of the owner. Gross negligence means that the required diligence was neglected in an unusual manner and that this is also subjectively attributable to the owner.

A typical case is the acquisition or division of a plot where the missing connection was already foreseeable. According to the case law, however, the mere purchase without a sufficient connection does not automatically exclude the emergency road. Only special circumstances that suggest gross negligence lead to refusal.

A further limit concerns the purpose: an emergency road may not serve merely to achieve a shorter connection than the one already existing. If a reasonable connection exists, the emergency road is excluded. Protected is the lack of a necessary connection, not the wish for a more comfortable route.

The district court in whose district the property in need lies decides on the emergency road. The proceedings follow the rules of the non-contentious procedure. It is therefore not a contentious civil action but a court procedure of its own kind, in which the court investigates the facts of its own motion.

The court determines all circumstances relevant to the necessity and design of the emergency road as well as the compensation, as a rule through an on-site inspection and with the involvement of experts. This ensures that the intrusion into the third party’s property remains limited to the necessary extent.

The compensation to the burdened owner is part of the decision. If the ground for the emergency road later falls away, the court can on application adjust the compensation or revoke the emergency road right wholly or partly. Legal guidance helps to prepare the application and the evidence.

First clarify the actual road situation: is there no usable connection at all, or is it only about a shortcut? This determines whether an emergency road comes into consideration. Obtain land register extracts and site plans of the affected plots to substantiate the position.

Where possible seek the agreed solution with the neighbour and secure an agreed access in the land register as an easement. This is usually quicker and cheaper than court proceedings and avoids lasting conflicts.

If no agreement succeeds and a necessary connection is missing, the emergency road through the district court is the path. Early legal advice clarifies the prospects of success and prepares the application. An overview of neighbour-law topics is found in our article on neighbour law and immissions.