Emergency right of way

In neighboring law, the emergency right of way is a right of way for a property owner if his property can not be used properly due to a lack of connection to a public road or a missing footpath and driveway in the context of an easement .

General

Proper use consists primarily of access to a property or right to property equivalent to a property . However, if access to a property is not secured either directly via a public road or indirectly via easements to the detriment of neighboring (“serving”) properties, the emergency right of way applies. As the word already indicates, there must be no means of access, so that a property owner is prevented from using his property properly and there is therefore an emergency for him . Then the legal regulations on the emergency right of way help him.

Examples

Germany

The legal norms on the emergency route law are part of the German property law , regulated in § § 917 and § 918 BGB . If a property lacks the connection with a public road, which is necessary for proper use, the owner can, in accordance with Section 917 of the German Civil Code, demand that the neighbors tolerate the use of their property to establish the necessary connection . The neighbors whose property the emergency route leads through are to be compensated with a cash pension, for which the provisions on the pension for the superstructure apply accordingly. The emergency right of way ends when the connection to a public route - for example through a new building - is established.

An emergency route is not to be endured by the neighbors in accordance with Section 918 (1) BGB if the previous connection between the property and the public route is canceled by an arbitrary act on the part of the owner (in practice usually a development of the previous own route or a division into several Properties without sufficient and secure access).

If the property is divided and part of it is sold and therefore cut off from the public route, the owner of the previous connection must tolerate the emergency route ( Section 918 (2) BGB).

The right holder of the emergency route right is the owner of the enclosed property, opponents are the owner (s) over whose property the emergency route must lead. A necessary connection to a public path is not only missing if it does not exist at all, but also if an existing connection is not sufficient for proper use. The development status of a path is irrelevant, a mere field path excludes the right of emergency access. If the property owner demands an emergency route from the neighbor, the acquiescence is imposed on him. The property owner's claim to removal according to Section 1004 of the German Civil Code (BGB) is reduced to a basic pension compensation claim.

The emergency pipeline law was developed by the case law analogous to the emergency route law and states that a property - due to its location - lacks the necessary connection to the public sewer or supply network for electricity , gas , district heating , water , sewage or telephone and therefore only through an over the neighboring property leading line can be supplied.

Austria

In Austria , for a property for which the necessary road connection with the public road network is missing, which is necessary for proper management or use,

because there is no connection at all or
this seems inadequate,

the judicial granting of an emergency route over someone else's property according to the law of July 7, 1896, regarding the granting of emergency routes (NWG), RGBl. No. 140/1896, if the disadvantage for the encumbered property is not greater than the advantage for the future beneficiary.

According to § 3 NWG, the emergency route consists of the servitude of the footpath, cattle drive or road, or the extension of such already existing rights of way. If an emergency access service granted on the basis of this law is subsequently dispensable, the court can determine compensation upon application or cancel the emergency access right in whole or in part (Section 24 NWG).

Similar regulations as in the NWG can also be found in the Goods and Ropeway Principles Act 1967 (Federal Law Gazette No. 198/1967) and in §§ 6 ff Forest Law 1975 (Federal Law Gazette No. 440/1975).

The Austrian Emergency Route Act has been practically unchanged since 1896. It was therefore necessary that the courts take into account the social changes since then. They have therefore developed extensive case law.

Liechtenstein

The Liechtenstein Notwegerecht was from Switzerland rezipiert . However, only paragraphs 1, 3 and 4 from Art 694 ZGB were adopted in Art 102 SR . Paragraphs 2 and 5 are separate legal provisions from Liechtenstein. Regarding the content of the emergency route law in Liechtenstein, reference can be made to the explanations on the Swiss emergency route law.

Switzerland

According to Swiss doctrine and jurisprudence, Art 694 ZGB only applies subsidiary to cantonal law and to practice or local usage in Switzerland.

Requirements according to Art 694 ZGB for the assertion and granting of the right of way are:

neighboring properties,
the total lack of one
suitable connection,
to the public road network, and
full compensation for the granting of rights.

According to Art 694 Paragraph 2 of the Civil Code , the right to a right of emergency access is principally directed against the neighbor who is most likely to be expected to be granted emergency access due to previous ownership and travel conditions, and also against those for whom emergency access is least likely is harmful. When determining the emergency route, the interests of both parties must be taken into account (Art 694 Paragraph 3 ZGB).

In accordance with Art 695 ZGB, the cantons reserve the right to enter the neighboring property via similar rights and, via the authorization of the landowner, for the purpose of managing or carrying out repairs and buildings, as well as via the right to stretch or kick , the Tränkweg, Winterweg, Brachweg, Holzlass, Reistweg u. Like. To set up more detailed regulations.

According to Swiss teaching, other types of property crossing, e.g. B. by cable cars , tunnels , bridges or the like as an analogous application for Art 694 ZGB (similar to Art 102 Para 1,3 and 4 SR).

literature

Philipp Höfle: Right of emergency way . 1st edition. Verlag Österreich , Vienna 2009, ISBN 978-3-7046-5343-7 .
Antonius Opilio : Working commentary on Liechtenstein property law (Web: google books link ) . 1st edition. tape I . EDITION EUROPA Verlag, Dornbirn 2009, ISBN 978-3-901924-23-1 .

Individual evidence

^ BGH, judgment of December 12, 2008, Az .: V ZR 106/07
↑ BGH, judgment of January 30, 1981, Az .: V ZR 6/80
↑ At 102 para. 2 SR : This provision also applies in particular if, as a result of cultural improvements and the like, a path becomes necessary or the existing right of way becomes insufficient .
↑ Art 102 para. 5 SR: Disputes are to be settled in non-dispute proceedings
^ Antonius Opilio in a working commentary on Liechtenstein property law. Volume 1, Dornbirn 2009, note 1 to Art 102 SR.
^ Quotation from Antonius Opilio in a working commentary on Liechtenstein property law. Volume 1, Dornbirn 2009, note 18 to Art 102 SR.

[1] BGH, judgment of December 12, 2008, Az .: V ZR 106/07

[2] BGH, judgment of January 30, 1981, Az .: V ZR 6/80

[3] At 102 para. 2 SR : This provision also applies in particular if, as a result of cultural improvements and the like, a path becomes necessary or the existing right of way becomes insufficient .

[4] Art 102 para. 5 SR: Disputes are to be settled in non-dispute proceedings

[5] Antonius Opilio in a working commentary on Liechtenstein property law. Volume 1, Dornbirn 2009, note 1 to Art 102 SR.

[6] Quotation from Antonius Opilio in a working commentary on Liechtenstein property law. Volume 1, Dornbirn 2009, note 18 to Art 102 SR.