Right of Passage: Advice on Ditch Problems

Questioner

My neighbor and I have a ditch between our plots. We both own half of it. Now my neighbour wants to establish a right of passage for a plot behind it. Here 20 chalets are being built. My backyard is still quite private, but with the passage this is no longer the case. The people from the other plot can also reach their chalets via a different route across the water Can I stop this?

Lawyer

You are part owner of the ditch and in principle you do not have to give permission to restrict this right with an easement.

Lawyer

A small addition to Mrs Ferwerda's answer. The above answer is correct if you and your neighbour are each undivided owners of the ditch. However, if each owns a part of the ditch, so if the cadastral boundary is in the middle of the ditch, it is different. In that case, your neighbour can establish an easement on his part without your cooperation. Exercise of the easement by the owners of the chalets will then be a difficult story because in that case they only have a right of passage on the neighbour's part of the ditch.

Lawyer

Apart from the question of how things stand between you and your neighbour, the following also plays a role. In rural areas, ditches are often seen as publicly accessible areas. I understand that there are recreational developments in your neighbourhood that could lead to 'water sports traffic' via the ditch. Unless you take physical measures to make the use of (your part of) the ditch as a continuous waterway unattractive, I think that you (regardless of any agreements between you and your neighbour) should take into account the threat of adverse consequences for your privacy.

Lawyer

An addition to the above answers. The law stipulates that if the property boundary runs through the middle of the ditch, each of the owners has the powers of 'co-owner'. This means that both owners may use the entire width to, for example, sail, fish or swim. At the same time, this means that one owner cannot pretend that he has nothing to do with the other owner, by establishing a right of passage for his 'part' without being interested in your interests. A right of passage cannot be divided into half of the waterway, because the passage concerns the waterway as a whole. Consequently, decisions about the use of the water must be taken jointly.