Right of Way

What is right of way?
The right of way (or right of way) is an example of easement. That is, you can use someone else's land. When right of way, you walk or cycle on the ground of your neighbors to get to the public road. Think of a back entrance to get to the barn or an alley that leads to your backyard. This can only be the case if your neighbors' land is the only way to get to the public road. You use the land, but your neighbors remain the owner. In addition, you use the path in such a way that your neighbors have as little trouble as possible.

Does anyone have a yard that is not adjacent to the public road? Then he can always use your yard in case of emergency. This is the right of way out (right of emergency way).

Do I have a right of way?
In order to get a right of way, you must have this recorded together with your neighbors in a notarial deed. We call this establishment. This deed is then entered in the public registers. If you are going to live in a new house, it may be that your neighbors already have this right. The broker or landlord is obliged to mention this. You can also look it up in the deed of sale or request it from the land registry. This is the register in which all agreements about the boundary of the inheritance are recorded. Another way in which this right can be established is limitation.

Right of way limitation
You have been using the neighbors' land for years to get to your garage. Then new neighbors come there, who deny you access. Is that possible? Even if the right is not officially established, you can start something against this. By limitation, it may be that you have obtained a right of way. If you used the path of the neighbors 'in good faith', then after 10 years there is a limitation period. Were you actually not allowed to use the path, but nothing was said about it? Then you must have used this piece of land for 20 years, to get a right of way limitation. There is only a right of way limitation if the following requirements are met:

• Continuous possession: You have used the path permanently or it must be clear to the outside world that you are allowed to use it.
• 10 years have passed and you are 'in good faith': You are 'in good faith' if you have every reason to believe that you can use the path. This may be the case if there is a wrong entry in the land register.
• 20 years have passed: You knew you weren't allowed to use the path, but your neighbors never said anything about it.

In most cases, the right of way is established by limitation. If you still want to have this right recorded, you must be able to prove it. Photos and statements from witnesses are often enough to show that you have used the path systematically all these years.

Please note:  A right of way can only arise since 1992 due to limitation.

Right of way by car (right of way)
If you have a right of way, you can walk (and sometimes cycle) on the ground of the neighbors to get to your yard or property. So you are not allowed to drive a car on the path. Is it a wide road that you can cross by car? Then there is (usually) a right of way (or right of way). This does not mean that the neighbor can also park his car in your yard. In principle, the right to park gives the right to park. The road must able to be entered without limitations. If the road is not closed and there are no signs (with 'own road'), then the path can be seen as a public road, so that parking is allowed.

What about maintenance?
If you have a right of way, you have the right to maintain the path yourself. For example, you can pave it, so that you can walk over it more easily. You do this at your own expense. Conversely, the owner of the land may require that you properly maintain the path, if necessary. He may also charge a periodic fee for the use of the path, provided that this is laid down in the deed of establishment.

Not only the user of the path has to adhere to certain rules. The owner of the land also has certain obligations. For example, he must ensure that nothing stands in the way on the path. Parking a car in such a way that you can no longer pass through it is therefore not allowed. The owner may close the yard with a fence, as long as the users can pass through it. For example, he can give you the key. Do you have a right of way, but suddenly there is a container or fence in the way? Then you can ask the neighbors in writing to remove this. If they don't, you can go to court. If you have a right of way, you always win the case and your neighbor pays for the costs of your lawyer.

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