Easement and Right of Way - Rechtswinkel.nl

Questioner

I have purchased a property and there is no information about easements. However, my neighbor's tenants use my entrance (gate/alley) to come and go to my neighbor's parking lot behind it. My neighbor is the owner and says that his tenants have been doing this for a long time (the building has been in the family for over 50 years) and that he has created a right of way with it. The tenants have not been there that long and my neighbor is not a user. There is a wall in the alley on our property line and if it were to be removed, it would be possible to drive to the back across both areas. I would like that because the entrance is 240cm wide and I think that is too narrow. The neighbor does not want to cooperate in removing the wall. His tenants also drive over metal plates of my basement which causes noise pollution for my future residents. I have emailed my neighbor that I want to remove the wall at my expense and make the street neat again. He is not very willing to do that either. I am now inclined to close the gate with a fence, to make my part private as well, as he has done. Only his half of the alley is not wide enough to drive to the back and mine is. That would mean that cars can no longer park behind it. If I am right, I want to force the neighbor to make a shared wide entrance. Difficult story with hopefully a clear answer..

Lawyer

Whether there is a prescription is difficult to say from this story alone and I would have to delve into it. It depends on a number of facts whether there should be a right of way, how the property boundary is determined, and how long this situation has been used, etc. I am quite prepared to delve into this, but this cannot be done free of charge. But sometimes it is still possible to resolve any disputes and/or remove an easement via the court. However, even then proper research must be done, etc. If you would like further assistance or advice, please feel free to contact me.

Lawyer

Tenants cannot, as a rule, bring about prescription on behalf of the owner. If the use of your entrance has not lasted for 20 years, there can be no question of a right acquired by prescription. You are then, as I can judge now, authorized to use your legal right to close off your property by means of a fence. I do assume that the neighbor's property has another possibility than via your entrance to reach the public road. If that is not the case, it is possible that your entrance will be designated as an emergency road. However, I would need to know more about the situation.

Lawyer

An easement may have arisen through prescription. All tenants then have the right to come and go in the manner that was customary in the area. (I assume an industrial estate). The person who believes he or she is entitled to enforce the easement (your neighbour) must appeal to this. You could start by summoning him to stop using your side, after which a discussion arises as to whether or not an easement has been created. Because it is also possible that agreements have been made about the use between the owners that have a different legal basis, namely an agreement. The agreement is only personally enforceable and does not lead to fixed, real rights. Then, an easement has arisen by prescription, in which case the easement must be executed in the least onerous way. In principle, you have no right to enforce the same, but your defense can lead to you getting your way and the parties creating a joint driveway, as a result of negotiation.