Right of way

Right of Way - A right of way (also known as a right of passage or right to walk and drive) is an easement under Sections 1018 et seq. of the German Civil Code (BGB) that grants the owner of a parcel of land the right to cross a neighboring parcel of land owned by another party in order to reach their own parcel. It is entered in the land register of the encumbered parcel and remains in effect even if the ownership of the parcel changes.

Legal Basis and Forms

The right of way can be established as an easement (Section 1018 BGB) in favor of a specific property or as a limited personal easement (Section 1090 BGB) in favor of a specific person. The easement is the more common form and the one more relevant to real estate buyers, as it is attached to the property and not to the person. The scope-whether limited to pedestrians, including vehicles, or also the laying of utility lines-must be clearly defined at the time of creation. A right of way under § 917 BGB arises by operation of law if a property has no access to the public road network.

Creation and Registration of a Right of Way

A right of way as an easement is created by a notarized agreement between the owner of the encumbered (servient) property and the owner of the beneficiary (dominant) property. Registration in the land register is constitutive-the right arises only upon registration in Section II of the land register of the servient property. The content of the right-width of the path, permissible means of transportation, times of use-is precisely described in the land register entry or in the referenced deed of authorization.

The right of way in case of necessity (Section 917 of the German Civil Code) constitutes a statutory exception: It arises directly by operation of law if a property has no access to a public road and access is possible only via a neighboring property. In this case, the owner of the encumbered property is entitled to a monetary annuity as compensation. However, the right of way should, if possible, be replaced by a registered easement, as disputes over its location and scope can lead to protracted legal battles.

Impact on Property Value

A right of way can affect the value of both properties involved. The encumbered property loses value because its use is restricted-by 5-15%, depending on the location and scope of the right of way. The beneficiary property gains value, as it only becomes accessible and buildable through the right of way. When appraising real estate in accordance with the Real Estate Valuation Ordinance (ImmoWertV), registered easements must be taken into account-failure to do so is a common mistake in simplified valuations.

Practical Tip for Buyers in Nuremberg

We recommend that buyers in the Nuremberg metropolitan region carefully check Section II of the land register for registered easements whenever purchasing a property. Particularly in the densely built-up old town districts and in established residential areas such as Mögeldorf, Laufamholz, or Ziegelstein, historical rights of way are frequently found that date back to times when properties were parcelled differently. Before purchasing, clarify exactly where the right of way runs, who uses it, and whether the actual use matches the land registry entry. In some cases, old rights of way have not been exercised for decades-yet they still legally encumber the property as long as they have not been formally deleted. In such situations, we recommend agreeing to make the deletion a condition precedent to the purchase contract or negotiating a corresponding reduction in the purchase price.

Frequently Asked Questions

Can a right of way be deleted?

Yes, if the beneficiary consents (deletion authorization) or if the right has become obsolete-for example, because the beneficiary’s property now has its own public access. Unilateral deletion by the encumbered party is not possible. The beneficiary may be obligated to grant permission for cancellation if the right has expired due to lack of exercise (Section 1028 BGB) or if the right has subsequently become obsolete. In the event of a dispute, the competent regional court decides. The costs for the notary and the land registry office for the cancellation typically range between €100 and €300, depending on the property value.

Who bears the maintenance costs of the path?

In principle, the beneficiary (Section 1020 BGB)-they must keep the path in proper condition and may only use it with care. They are obligated to maintain the property in proper condition and to repair any damage caused by exercising the right on the servient property. In practice, cost-sharing is often regulated by contract, especially when both neighbors use the path jointly. In the event of a dispute over maintenance obligations, we recommend a written agreement to avoid years of neighborhood conflicts.

Does a right of way reduce the purchase price?

Yes, a registered right of way is a value-reducing factor for the encumbered property. The extent of the reduction in value depends on the location of the path on the property, the intensity of use (pedestrians only vs. vehicles), the frequency of use, and the infringement of privacy. During price negotiations, this point should be openly addressed and, if possible, quantified through an expert appraisal. As a rough guide: A rarely used pedestrian right-of-way at the edge of the property reduces the value less significantly than a right of way across the garden that is used daily by several neighbors.

How do I proceed if a right-of-way is listed in the land registry but no longer exists in practice?

In practice, it often happens that a right of way is registered in the land registry, but the physical path has long since been built over, overgrown, or is no longer usable for other reasons. The legal existence of the right of way does not automatically end due to non-use-it remains registered in the land registry and legally encumbers the property, even if it has not been used in practice for decades. Section 1028 of the German Civil Code (BGB) provides for the exclusion of the right in certain cases if the right of way has been impaired, but this requires specific factual conditions to be met. The surest way to clarify the situation is to contact the beneficiary and agree on a consent to deletion in exchange for a nominal compensation, if applicable. We recommend that buyers of properties in Nuremberg’s historic districts have historical rights of way clarified in a legally binding manner prior to purchase-either through a notarized consent to cancellation as a condition precedent to the purchase agreement or through a corresponding reduction in the purchase price that reflects the cost of subsequent rectification.

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