Legal Advice for Access Problems to Your Home

Questioner

we bought a house, without right of way. Now the previous owner lived at this address for 43 years and always used the path of the neighbor to get to the road. Even with the car, which she could then park on her own land. In front of the garage. Now we bought that house and the neighbor wants to put a fence between his and our land, so that we can no longer pass through. Behind the house runs the towpath along the old Rhine, over this we could then walk to the road, but that I walk 500 meters. Our front door also borders on the part where the fence would come, the house only has 1 door, so a strange situation. Can we do something about this? When selling, the real estate agent and seller said that there was nothing official, but that walking over the path was no problem. I also spoke to the neighbor about putting up a fence, we thought that was fine as long as there was a gate. The neighbor on the other side does have the right of way and is even allowed to drive his car over the land of the neighbor in question. So it is not that we are using his garden, but purely a piece of asphalt road. in short, a situation that has been like this for more than 43 years. If there were a fence, our front door would be in our backyard...

Lawyer

What an annoying situation! I do not have enough information to conclude that you have acquired a right by prescription. It is important to know: was the previous owner granted permission to go over the neighbour's land (in which case no prescription), or was there no permission for this (in which case there is a chance of prescription)? Secondly, what interest does the neighbour have in suddenly ending a situation that has existed for 43 years? If no special reason is apparent, it could be that the neighbour is abusing his right of ownership. It is a pity that your house is located on public water. You cannot then appeal to the right of emergency. The legislator assumes that someone must be able to reach his house via the public road or public water. You do not have direct access to the public road, but you do have access to public water. That is of course impractical, but for the legislator only accessibility counts. A final option is to inform the municipality about the situation. Municipal regulations contain rules on the accessibility of a home for emergency services, and on the possibilities of closing off a road that has always been accessible to everyone. The municipality may be able to take action against the placement of a fence. Finally: I don't know what's going on between you and your neighbours. If a conflict has arisen, a good conversation can sometimes help. Before you start any of the above actions, it's a good idea to find out what the reason is for your neighbour to suddenly block access to your home.

Lawyer

The way you describe the situation it sounds like three neighbours have built a neighbouring road, a bit of an odd one out but the neighbouring road is protected when it is still in use and cannot simply be closed without the permission of the users! Read According to the old art. 719 (Old) BW, a neighbour's road is a road that is used by multiple neighbours and can only be relocated or destroyed with the permission of all residents. In case law, this right is established as follows: 'For the creation of a neighbouring road, it is not required that the will or intention of the legal predecessor(s) of [appellants] was aimed at creating a road for joint use as a neighbouring road. It is sufficient that, as in this case, it concerns a strip of land that also outwardly appears as a road, serving the nearby lands, which for a long time has served such a joint use of the road that, based on the actions of the owner of the neighbouring road or the joint neighbours including the owner, it can be concluded that there was an express or tacit declaration of intent by that owner.' (Thus the Court of Leeuwarden. See also the District Court of 's-Hertogenbosch, provisional relief judge of the District Court of Arnhem and the District Court of Almelo.