Rights in right of way | Free legal advice

Questioner

Ls, my neighbor has a shed at the end of my driveway, and has been in use as a garage since 2000. My neighbor states that he has a right of way. This is not stated in the register or the deed of transfer, but it is stated in the purchase contract 'right of way driveway'. Now the neighbor drives his bus over the driveway every day to and from his garage, and he and his family also use the driveway as an entrance while the house has its own entrance. We are the full owner of the entire piece of gravel, but we can't do anything with it, not even parry on the driveway because he always has to get out, even at night. Now I had heard that the right of way only applies to reach the public road by bike or by bicycle, and that it does not apply to motorized traffic. How does that actually work, what are our rights and those of the neighbor??

Lawyer

If your neighbours would have such a right, then there is an easement and you have the servient property. A right of way gives the right to walk or cycle over the servient property, a right of way gives the right to drive a car over the servient property. However, an easement must be registered in the public registers (Land Registry) in order to exist, unless it has arisen by prescription. The mere mention of a 'right of way' in the deed of sale is insufficient. In short: if there is no easement in the public registers, neither at your address nor at the address of the neighbours, then there is no easement. It is then up to the neighbours to demonstrate that an easement has arisen by prescription. Usually that means that they have to go to court. Annoying, because that does not improve the atmosphere. You can also propose to the neighbours to establish such an easement through a notary and agree on an annual fee for this (which your neighbours will then pay to you).

Lawyer

A right of way that was once agreed upon, personally or in rem, must be exercised in the least onerous manner and only for the purpose that the parties had in mind at the time. It is not clear to me now whether the right is in rem (as stated in the land registry) or personal, because the latter could mean that the agreement can even be terminated. If it is also a right in rem, then it applies in particular that only the neighbour or the driver of the car may use the right of way if the garage is used for that reason and there was no objection to the use and establishment of the (limited) right at the time.

Questioner

Thank you for your clear and quick response. Neither the register nor the notary mention any easements, the neighbour assumes that there is a prescription, but has not recorded this. And of course we have to work it out together, but it is good to know what your rights are in this. Now I am bothered by it because he drives back and forth after 11 pm and before 7 am, the holes in the path that have arisen are not being addressed and the family comes up the path by car etc. Anyway, I do not have the idea that the neighbour realises that it can be done differently. However, there is still a question that causes confusion. On the legal helpdesk it is indicated that there are various forms of easements. Right of way is one, right of way is another variant. It is stated here that right of way is not for motor vehicles (moped, motorcycle, car and/or van), that this only applies to right of way. I would like to know if this is correct, because in such a case, a van is not allowed to drive. And if so, can I tolerate it without any rights being linked to it, because I want to accommodate the neighbor to keep it liveable for both, but with the restriction that he does so without too much nuisance. Would you like to or be able to answer that question?

Lawyer

I already mentioned that distinction in my answer. Apparently, the purchase contract for your house mentions a right of way. That at least excludes the possibility of a right of way, so that driving back and forth with a motor vehicle is indeed not the intention. If you tolerate the use of your driveway by the neighbours - on foot, by bicycle or by motor vehicle - then a personal right arises that was already mentioned. You then simply agree on what the intention is and under what circumstances. But that is something different from an easement. Such tolerance does not give rights to subsequent buyers. You can also recover damage to your driveway from your neighbours if you can prove that they caused the damage.

Lawyer

If there is no right of way to be found in the Land Registry, then there is NOT one, no matter what your neighbour claims. Anyone who builds a garage somewhere and cannot reach it via their own land, must simply arrange access via the neighbours properly. That is not your first concern. A right of way does not arise by mentioning it in a purchase agreement. And so you do not have to take it into account. So you can deny your neighbour access to your land. Or demarcate your land with a property boundary, so that your neighbour can no longer drive over your driveway. You keep the key for yourself. Of course, warn them in time, so that your neighbour can prepare for it. If your neighbor invokes prescription, the neighbor must go to court and prove that 1. that right has actually arisen and 2. what exactly that right of way entails. And that is very difficult with this type of use of your driveway, because the law is very strict for these types of neighbors. If you want to help your neighbor, write down for yourself 1. What access you would like to grant your neighbour to your land: when, how often, whether or not to park, etc. 2. what compensation you ask for: that is called the canon. Because granting access to your land is quite an infringement of your property rights and your privacy. There should be something in return. 3. And whether you want to arrange all that with the notary - because after that you won't be able to get rid of it easily. 4. And who pays for all that - it is customary for your neighbor to pay the notary fees, because he benefits from them. 5. And then go and talk to the neighbor. Keep in mind that it will cost money, for the neighbor. And hassle. So a negative or even angry reaction from the neighbor can easily happen. Write down everything you agree on in any case, to prevent misunderstandings and such ('I didn't say that at all!' or 'we really didn't agree on that').

Lawyer

First of all, how annoying for you that for years you have not been able to use your own piece of land as you wish due to the fact that your neighbors use the piece of land as a right of way to get to their garage. I would like to know a little more about your case and perhaps we can offer you the opportunity to address your issue in our program. I am working for the new SBS6 television program 'Meester Frank Visser doet Uitspraak' in which Mr. Frank Visser resolves high-profile issues and conflicts. You may know Mr. Frank Visser from the TV program 'De Rijdende Rechter' (started by him over 20 years ago because he believed that all people have the right to justice. And he still believes so!) If you are interested, please do not hesitate to contact us, we may be able to help you. If your 'problem' has now been resolved - then we are of course happy for you! Kind regards, Nadine van Vilsteren Team Mr. Frank Visser Gives Verdict

Questioner

Thanks for your response and your offer. I do have a small addition to the case. In this case, it is not only about a not yet established right of way, which would not really be a big problem, but especially that this not yet established easement is interpreted and applied as a right of way, without our permission. This latter, right of way, greatly restricts the use of our piece of land. However, we would first like to have a good consultation with the neighbours, this seems to us the right way to come to a solution with common sense, but of course I will keep your offer in mind,