23.01.2025 • 6 min. reading time
Content of this article
In conversations with homeowners, we often hear the question of what a right of emergency access is and what it entails.
What is a right of emergency access?
In essence, it is about whether neighbors are allowed to cross someone else's property to get to their property because there is no connection to a public traffic area. Under certain conditions, a so-called "trapped property" can then be granted a right of emergency access.
It is obvious that this topic can lead to controversy - and even legal disputes - among homeowners. In this article, we would therefore like to give you an initial overview of emergency access rights. However, this article is no substitute for professional legal advice.
Right of way in the German Civil Code (BGB)
This legal text explained in simple terms: You can demand that your neighbors use paths across their properties if your property lacks access to a road. As long as this is the case, your neighbor has the so-called "right of passage". However, in the case of emergency rights of way (as an "emergency solution"), this only applies until access has been created for your property.
A distinction is also made between the terms "dominant" and "servient" property against this background. The meanings:
"Dominating" property: belongs to the owner who is allowed to temporarily use the third-party access path.
"Serving" property: belongs to the owner who provides their access path for this purpose.
In these cases, it is often possible to reach a neighborly and "friendly" agreement. However, if the neighbor refuses the emergency access route across their property, owners can sue for the emergency access route. In this case, a court will decide whether the requirements are met.
Requirements for the right of emergency access
Certain criteria must be met for a right of emergency access to be granted. We have listed a selection for you here:
- There is no connection between the property and a public road. This also applies to access points that are too narrow, cannot be used temporarily or are only partially connected to the road.
- It is not possible to use the property appropriately - even if there is a connection to a public road.
- Only the owner or leaseholder of the inaccessible property can demand a right of emergency access, not tenants or leaseholders.
- All property owners located between the disadvantaged property and the public traffic area must expressly demand the emergency access right.
- If the inaccessible property belongs to several people, all property owners must jointly demand their emergency access right
Judgments on emergency access rights: Claims are often denied
A large number of judgments show that emergency access rights cannot be taken for granted: Emergency access rights cannot be taken for granted. A cumbersome or inconvenient connection to the road, for example, is not an argument for granting an emergency right of way. The same applies if a longer detour would have to be accepted or if a car cannot be parked directly in front of the door.
Anyone who has arbitrarily removed or built over an existing access road to their property cannot claim emergency access rights either. There is also no such thing as a "customary right" to an emergency access route. Anyone who has always allowed neighbors to drive across their property is not committing themselves - this does not result in an automatic right of emergency access.
By the way: The right of emergency access also plays a role in agriculture. You can find out more about this here.
Six further points on the topic of emergency access rights
- An emergency access right is not always automatically recorded in the land register. Rights of way can also be agreed as part of a private contract. However, they can certainly be transferred as an easement and entered as such in the so-called "Section II" of the land register. You can find out what this means here.
- There is an emergency right of way compensation. This is referred to as emergency access rent, monetary rent or the amount in dispute in emergency access rights. The compensation must be paid by the user of the emergency access right to the neighbor who has to grant it. The amount is based on the reduction in the market value of the neighboring property.
- The right of emergency access is enforceable. If your neighbor refuses you the right of emergency access, you have the right to sue for it. The court will then check whether the requirements are met.
- An expert can calculate the compensation. However, they usually do not check whether an emergency access right exists.
- There is also an emergency access right for construction vehicles. If planning permission has been granted, construction vehicles must be able to access the property under certain conditions.
- Emergency access rights and rights of way differ. If a property is only temporarily cut off from public access, this is referred to as an emergency access right. A right of way must be granted until the property can be reached again via its own access road.
Conclusion: It is worth paying attention to the issues surrounding the right of way when buying a property. If you have specific questions about this, you should always seek legal advice.
