In a very recent ruling, the Federal Court of Justice clarified that, contrary to widespread belief, customary law—in this specific case, right of way—cannot arise or be exercised through long-standing tolerance, even if this tolerance has lasted for decades.
( Federal Court of Justice – Judgment of January 24, 2020 – Ref.: ZR 155 ( 18 )
The prerequisite for the creation of a customary right is that it must not only apply to individual cases but must also be valid in principle for all legal relationships of the same kind. It must be recognized by the parties involved as a binding legal norm.
As brokers and experts, when we inquire about access routes to a property, we often hear that "grandfather was already allowed to use this route to the property" and that, therefore, a customary right – in this case, a right of way – had arisen and could also be used in the future.
This is not the case if there is no contractual agreement between the grantor and the grantee. (This means a written contract.) Only if there is a written agreement can the user exercise the right during his lifetime.
The right expires upon any sale or transfer of the property to new owners. It can certainly be reestablished by a new agreement – which is sensible and then legally secure.
An entry in the land register would be the best solution, but this is not always desirable, as rights of way encumber and devalue the encumbered property. The same applies to pipeline rights.
Another possibility for establishing a right of way arises from a situation in which a property can only be accessed via other people's property. This is referred to as an emergency right of way.
In the case decided, a "helicopter property" had been illegally built on with garages – the users of the garages had been using an access road on third-party property for a long time and trusted that this had created a customary right. When the owner of the access road blocked it with a gate, a legal dispute arose.
If the garages had been built legally, it would have been possible to obtain legal use of the access road across third-party property by means of a right of way.
As it was, however, the unwilling "access tolerator" was completely within his rights when he refused to allow the garage users to cross his property.
The case described above is another example of why it is essential to carefully review many value-determining factors before selling a property. If necessary, consult specialists such as real estate agents and notaries. This is the only way to avoid conflicts (liability risks), disadvantages, and legal disputes.
