Right of way

Right of Way - A right of way is a right in rem or a contractual right to use another person’s property as an access point or driveway, and is generally registered as an easement in Section II of the land register.

Legal Basis and Forms of Right of Way

The right of way is one of the most common rights of use in real estate law and primarily concerns properties that do not have their own direct access to a public road. The German Civil Code (BGB) recognizes several forms that differ significantly in their scope and effect.

The easement under § 1018 BGB is the most common form of right of way. It encumbers the so-called servient estate in favor of the dominant estate. The right of way is entered in Section II of the land register for the servient estate and has the effect of a real right-meaning it remains in effect even if the property changes hands. The easement can be structured as a right of way for pedestrians, vehicles, or a combined right of way for both pedestrians and vehicles. The exact scope-such as the width of the path, the permitted intensity of use, and maintenance obligations-is specified in the notarized declaration of consent.

The right of way under Section 917 of the German Civil Code (BGB) applies when a property lacks a proper connection to a public road. In this case, the owner of the neighboring property must tolerate its use as an access route until an alternative access is established. The right of way arises by operation of law and does not require registration in the land register; however, the party required to tolerate the use is entitled to a right of way fee as compensation. The amount depends on the extent of the impairment and is determined by a court in the event of a dispute.

Another form is the limited personal easement under § 1090 BGB. It is registered not in favor of a property but in favor of a specific person and expires at the latest upon that person’s death. This form is suitable, for example, when a neighbor is to be granted a personal right of way without permanently encumbering the servient property.

In addition, a right of way can be agreed upon purely under the law of obligations through a contract between the property owners. However, such a contractual right of way is binding only on the contracting parties and does not automatically pass to the legal successor in the event of a change of ownership. We therefore generally recommend securing the right in rem through registration in the land register.

Impact on the Value of the Dominant and Servient Properties

A registered right of way has a significant impact on the market value of both properties involved. For the dominant property, the right of way is often a mandatory prerequisite for developability and thus contributes to its value. In many cases, a rear property without a secured right of way cannot be developed with the necessary permits and thus loses significant value.

For the servient property, the right of way constitutes an encumbrance that reduces its market value. The reduction depends on the location and width of the path, the intensity of use, and whether the servient property’s own buildability is thereby restricted. In real estate valuation, the reduction in value caused by the right of way is taken into account as a special property characteristic within the framework of the comparative or asset-based valuation method.

Practical Tip for Property Owners in Nuremberg and Franconia

In the Nuremberg metropolitan region, we encounter easements particularly frequently in established residential areas-such as in the Nuremberg neighborhoods of Ziegelstein, Buchenbühl, or Kornburg, where rear-facing properties were accessed for decades via informal paths that had to be formally secured in the land registry only later. Numerous historical cases also exist in the Franconian districts of Nürnberger Land, Roth, and Forchheim where rights of way are not recorded in the land register at all or are recorded only inadequately.

We recommend that buyers carefully check the land register for existing rights of way before purchasing a property in the region-both in the entry for the property being purchased and in the land registers of neighboring properties. For rear-facing properties, a legally secured right of way should be contractually agreed upon as a condition of purchase. Our network of experts and notaries in the region provides support in evaluating existing rights of way and establishing new easements.

Frequently Asked Questions

Can a registered right of way be deleted?

The cancellation of a right of way registered as an easement requires the consent of the owner of the dominant property in the form of a notarized authorization for cancellation. The owner of the servient property cannot unilaterally enforce the cancellation. In practice, cancellation occurs when the dominant property is accessed by other means and the right of way is no longer needed.

Who is responsible for maintaining the right-of-way?

The maintenance obligation is determined by the agreement in the declaration of consent. In the absence of an explicit provision, the beneficiary-that is, the owner of the dominant property-generally bears the costs of maintenance, as they are the one using the right-of-way. In practice, we recommend clearly defining maintenance obligations, snow removal, and traffic safety obligations at the time the right of way is established to avoid future neighborhood disputes.

Does a right of way reduce the value of my property?

For the encumbered (servient) property, a right of way represents a reduction in value, the extent of which depends on the scope of the encumbrance. A narrow footpath along the edge of the property has less of an impact than a wide driveway through the middle of the property. Appraisal committees in the Nuremberg metropolitan region consider rights of way as a special property feature and, depending on the individual case, apply discounts of between 5 and 15 percent of the land value.

How is a new right of way established by a notary?

The creation of a right of way as an easement is effected by a notarized declaration of consent from the owner of the servient property. This declaration precisely describes the location, width, and scope of use of the path, as well as provisions regarding maintenance obligations and cost allocation. The consent is then submitted to the land registry office and entered in Section II of the land register for the servient property. At the same time, the dominant property may receive a corresponding notation indicating that it is entitled to a right of way on a specific neighboring property. The notary fees for such a creation are based on the value of the easement, which is calculated based on the economic benefit to the dominant property. In the Nuremberg metropolitan region, the total costs for establishing a simple right of way typically range between 500 and 1,500 euros, including notary fees and land registry entry-a manageable investment compared to the long-term legal certainty benefits for both properties.

Back to the Real Estate Glossary.