Experiences with alternative route rights / judgments

Hello everyone,

has anyone of you already had experience with the issue of emergency right of way, especially regarding judgments or case law?

The background is as follows:

A private road passes by my property, which is equally owned by 3 parties (green arrows).

On a property behind it, which was formerly used as a garden, a WBG now wants to build a multi-family house (black square, planned multi-family house).

There is no direct access or driveway to this property from a public street. No pedestrian and vehicular right of way is registered. The previous owners (more than 20 years ago) were allowed, based on a verbal agreement, to access the above property via the private road with agricultural equipment. Attention: and indeed via the existing access driveway (only passable by tractor) (yellow marking).

Now to the actual problem: The WBG will sooner or later request and possibly sue for an emergency right of way.

In the WBG’s plans, a garage access as well as further above-ground parking spaces are planned (orange marking). However, these cannot be reached via the direct path (green arrows to yellow existing driveway) but only via the courtyard area (orange arrows).

An emergency right of way probably has to be grudgingly accepted. But I do not want to accept that 8+ cars drive daily over the entire courtyard area and that it can no longer be used for our parking spaces or planting.

Does anyone have experience with whether one can insist on the direct path of the emergency right of way? Whether it even makes sense to get involved in a lawsuit if necessary?

The legal statements in the Building Code are unfortunately very vague:

Civil Code (Building Code) § 917 Emergency Right of Way

(1) If a property lacks the connection necessary for proper use with a public road, the owner can demand from neighbors that they tolerate the use of their properties to establish the required connection until the defect is remedied. The direction of the emergency right of way and the scope of the right of use shall be determined by judgment if necessary. (2) The neighbors whose properties the emergency right of way runs over shall be compensated by a monetary rent. The provisions of § 912 paragraph 2 sentence 2 and §§ 913, 914, 916 apply correspondingly.

"until the defect is remedied..." If there is never a planned connection to the public road, the defect will never be remedied.

I am grateful for all advice.

Have the right of passage for emergency routes limited in time. Yes, if by such and such a date something else is built. Lawyer! Get advice now!!!!

Thank you for your response. Legal advice is already planned. Unfortunately, I consider a limitation of the right of way to be rather unrealistic.

Creating facts: Where the 2 cars are parked on the aerial photo, a as massive as possible enclosure must be put up as quickly as possible, including planting and a green area behind it, possibly a permit-free bicycle shed, etc. So that on site the question of access through your yard no longer arises. Passage to the rear houses then only between the house and the new green area.

Thank you for the response. A palisade wall about 1m high with an 80cm deep flower bed is located between the cars and the property boundary to the planned multi-family house. I just fear that quite a bit of soil will be removed during construction (the multi-family house property is about 1.50m higher than the yard area). The retaining wall on the property boundary, to which the palisades and the bed extend, will probably also be removed. But already a good and important idea with the enclosure etc.

: What’s the point of that? As soon as the building permit is granted, the matter is settled.

My suspicion is that you will permanently accept the right of emergency access. A time limit does not create facts. For example, after a 20-year limitation, the residents won’t be flying in there by helicopter, right? Because as you write, the "defect" will never be fixed. What happens on their property is none of your business, no matter where they place their driveway or parking spaces. Unless there is a development plan with building boundaries for the house and garage that are not being respected.

Suing against the right of emergency access will only delay things and burn money, nothing more. If I were you, I would have the situation compensated in gold. Because once facts have been created and you block their driveway with your cars, you won’t succeed in a legal dispute.

As I said, just a suspicion.