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Right of way does not justify a right to the most convenient way

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Right of way does not justify a right to the most convenient way

There is no right to shared use of a neighboring property in order to get to one’s own property if there is another – albeit more difficult – access to one’s own property. The right of way is not relevant in such a case, according to the Frankenthal District Court. This applies even if a walking disability makes the alternative access appear particularly uncomfortable.

Path to yard cut off by fence

Those involved are neighbors. The plaintiffs shared the property of the defendant couple for some time. They used this to get to their own property from the public road. After the neighbors had erected a fence along the property line, it was no longer possible for the plaintiff couple to access the courtyard by this route. From then on, they had to transport their bicycles and the like via a different route, over two steps and through the hallway. The plaintiffs considered this unreasonable and demanded that the fence be removed.

LG: No right to the most convenient way

The LG sees this differently. A right of way only exists if a property cannot be reached from a public road in any other way than via an adjacent property. There is no such island situation here. The corner property of the plaintiff spouses borders on two public roads and can also be reached without using the neighboring property. The fact that the alternative way is more complicated, less convenient or more expensive to set up is irrelevant. A right to the most convenient route cannot be derived from the principles of the right of way.

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Handicap not relevant

The fact that the plaintiff husband suffers from a walking disability also does not lead to a different result in the LG’s opinion. Because only the objective circumstances are decisive for a right of way. The court also did not consider a binding agreement between the neighbors or customary law to be proven. The judgment is final.

on LG Frankenthal, judgment of November 30, 2022 – 6 O 187/22

Editorial office beck-aktuell, March 27, 2023.

Related Links

From the beck-online database

Selke, How do you defend a right of way?,
AND 2022, 461

Gegenheimer, The requirements of the civil right of way and its exercise in the context of an enforcement,
DGVZ 2021, 129

Note to BGHEven old age does not entitle you to emergency right of way for access by car!, IMR 2016, 426

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