Right of way (recht van overpad): how it arises, works and ends

Geçiş hakkı (recht van overpad), bir mülk sahibine komşu araziden geçme hakkı verir. Bu bir irtifak hakkıdır (erfdienstbaarheid): araziye bağlı gerçek bir haktır, bu nedenle, satın alırken bu haktan haberdar olup olmadıklarına bakılmaksızın, geçtiği arazinin her gelecekteki sahibini bağlar.

An easement arises by notarial deed registered in the public registers, or by prescription after ten or twenty years of use. A path used for decades is therefore not automatically a right of way, but the absence of a written agreement does not mean no right exists either. Where a plot has no access to a public road at all, the owner can claim a way of necessity (noodweg) over neighbouring land against compensation (Article 5:57 of the Dutch Civil Code, BW).

Geçiş hakkı nedir?

A right of way is an easement: a burden on one property for the benefit of another. Under Article 5:70 BW, it obliges the owner of the burdened land to tolerate something, in this case passage.

A right of way always involves two properties. The property that benefits is the dominant estate (heersend erf): for instance a plot behind other houses that is reached over a neighbour’s drive. The property that bears the burden is the servient estate (dienend erf): the land over which the path runs.

Because it is a real right (zakelijk recht), the right of way stays in place when either property is sold. A new owner of the dominant estate automatically has the right; a new owner of the servient estate is bound by it. When you buy a property, the civil-law notary checks the Land Registry (Kadaster) for registered easements, but a right acquired by prescription does not appear there.

Geçiş hakkı nasıl oluşturulur?

Noter tasdikli bir belgeyle kadastroya kaydedilerek veya uzun süreli kullanım sonucu zamanaşımıyla kazanılabilir. Komşular arasındaki gayri resmi bir düzenleme geçiş hakkı teşkil etmez ve prensip olarak sona erdirilebilir.

noter tasdikli belgeyle

The clearest route is establishment (vestiging) by notarial deed. The owners agree on the route, the permitted use (on foot only, or also by car or machinery) and arrangements on maintenance, gates and costs. A medeni hukuk noteri (notaris) then draws up the deed of establishment, often with a map, and registers it in the public registers kept by the Kadaster.

Registration is what makes the right effective against later buyers. An agreement without deed and registration is only a personal contract between the current owners. The deed can also include a qualitative obligation (kwalitatieve verplichting, Article 6:252 BW) or a perpetual clause (kettingbeding) for duties beyond tolerating passage, such as contributing to maintenance.

reçete ile

A right of way can also arise through long use, known as prescription (verjaring). Someone who possesses a right of way in good faith (te goeder trouw) for an uninterrupted period of ten years acquires it (Article 3:99 BW). Good faith means the user reasonably believed they had the right, for example because their purchase deed referred to a right of way that was never properly established.

Without good faith the period is twenty years: the owner’s claim to end the possession is then time-barred, and the possessor becomes entitled to the right (Articles 3:105 and 3:306 BW). In practice this is the route most often relied on.

Proving prescription is difficult. The use must have been continuous, uninterrupted and unambiguous, in a way that made clear to the owner that a right was being claimed. Use the owner merely tolerated as a neighbourly gesture does not count. Evidence can include old photographs, witness statements, aerial images and maintenance records.

Geçiş hakkı, izin veya kamu yolundan nasıl farklıdır?

Komşudan alınan izin kişiseldir ve prensip olarak geri alınabilir; geçiş hakkı ise sonraki sahipleri bağlayan gerçek bir haktır. Kamu yolu herkese açıktır ve kamu hukuku kapsamına girer.

Permission or mere tolerance usually ends when the neighbour withdraws it or sells the property, although a reasonable notice period may be required if the arrangement has existed for a long time. A private path can also become a public road. Under Article 4 of the Roads Act (Wegenwet), that happens if it has been open to everyone for thirty years, if it has been open to everyone for ten years and maintained by a public authority, or if the owner has made it available to everyone.

Geçiş hakkı için ödeme talep edebilir misiniz?

Yes, if the parties agree. The deed can provide for a one-off payment or a periodic payment (retributie) from the owner of the dominant estate (Article 5:70 paragraph 2 BW).

For a way of necessity the law itself provides for compensation, set by the court if the parties cannot agree. For a right acquired through prescription there is no compensation: the right arises by operation of law.

Eğer arazinizin halka açık bir yola erişimi yoksa ne olacak?

Then you can claim a way of necessity over neighbouring land. This is not an easement, but a statutory right that the court can determine, against compensation for the neighbour.

Under Article 5:57 BW, the owner of land without suitable access to a public road can demand that the surrounding owners allow a way of necessity. If they cannot agree, the court sets the route and the compensation. If the land became enclosed because a larger plot was divided or partly sold, the way must in principle run over the land that was split off. Once the land has its own suitable access, the way of necessity is no longer justified.

Her mülk sahibinin hak ve yükümlülükleri nelerdir?

The user may cross the land as agreed, but in the way least burdensome for the servient land. The owner of the servient land must not obstruct passage, but keeps the right to use and manage the land.

The content of the right is determined first by the deed of establishment. If the right arose through prescription, its content follows from the way it was actually exercised during the prescription period (Article 5:73 BW). Unless the deed provides otherwise, the owner of the dominant estate may carry out the works needed to exercise the right and bears their costs (Article 5:75 BW).

The owner of the servient land may ask for the route to be moved to another part of the land provided this does not reduce the user’s enjoyment of the right (Article 5:73 paragraph 2 BW). A gate is often allowed for security, provided the user receives a key or code; a locked gate without a key is an obstruction.

What should you check as the user of the path?

As owner of the dominant estate, your position depends on the deed or on proof of long use.

• Get the deed of establishment and a Kadaster extract, and read the permitted use and route.
• Check whether your use stays within that scope: a footpath does not cover cars or delivery vans.
• Check who pays for maintenance; without an arrangement, that is you (Article 5:75 BW).
• If there is no deed, collect dated evidence of ten or twenty years of use now.
• Keep a key or code to any gate and record each obstruction with dated photos.

What should you check as the owner of the land?

As owner of the servient estate, you must tolerate passage, but only within the limits of the right.

• Check the Kadaster and your purchase deed for registered easements before you build or fence.
• Check whether the actual use exceeds the deed, for example business traffic on a private footpath.
• Give the user a key or code before you place a gate across the path.
• Consider asking for relocation of the route under Article 5:73 paragraph 2 BW if it blocks plans.
• Assess whether the right can be cancelled under Article 5:79 BW, for example because the other plot now has its own access.

Peki ya bir anlaşmazlık çıkarsa?

Çoğu anlaşmazlık, engelleme, anlaşmadan daha fazla kullanım veya bakım masraflarını kimin ödeyeceğiyle ilgilidir. Öncelikle bir görüşme ile başlayın, ardından arabuluculuğu düşünün ve mahkemeye ancak son çare olarak başvurun.

Many municipalities offer neighbourhood mediation (buurtbemiddeling) with trained volunteers, usually at no cost to the neighbours; a professional mediator or binding advice (bindend advies) from an independent expert are other options. Before any step, collect dated photos, witness statements, the deed, a Kadaster extract and your correspondence.

Hangi mahkeme karar verecek?

In urgent cases, for instance when a path is blocked and you cannot reach your home or business, you can ask the preliminary relief judge (voorzieningenrechter) for an order in summary proceedings (kort geding) to remove the obstruction. Disputes about whether a right of way exists, its route or its content are decided in ordinary proceedings before the district court (rechtbank). If the dispute also involves building work next door, read about the komşularınız izinsiz inşaat yaparsa yasal seçenekler.

Geçiş hakkı değiştirilebilir veya sona erdirilebilir mi?

Evet: mal sahipleri arasında yapılan anlaşma ile, noter senediyle kayıt altına alınarak veya mahkeme tarafından belirli yasal gerekçelerle. Bir geçiş hakkı, sadece bir mal sahibinin istemesiyle sona ermez.

By agreement, the owner of the dominant estate waives the right or the parties agree a new route or conditions. A notary records this in a deed of cancellation or amendment and registers it in the Kadaster; without registration, the change binds only the current owners.

Without agreement, the owner of the servient estate can ask the court to step in. Under Article 5:78 BW, the court can change or cancel an easement because of unforeseen circumstances that make it unreasonable to keep it unchanged, or, once it has existed for twenty years, because it conflicts with the general interest; the court can award compensation. Under Article 5:79 BW, the court can cancel an easement if its exercise has become impossible, or if the owner of the dominant estate no longer has a reasonable interest in it and that interest is unlikely to return. The text is in Hollanda Medeni Kanunu'nun 5. Kitabı wetten.overheid.nl adresinde.

What can we do for you with a right of way?

As explained on our emlak avukatı page, we advise property owners, buyers and developers on easements and neighbour disputes.

• We review the deed of establishment and the Kadaster extract and explain what use is allowed.
• We assess whether a right of way has arisen by ten or twenty years of prescription.
• We draft the terms for a new, amended or cancelled easement for the notary.
• We send a formal demand to the neighbour who obstructs or overuses the path.
• We start summary proceedings or ordinary proceedings before the district court.

ÖZET

• Geçiş hakkı bir irtifak hakkıdır: gelecekteki sahipleri bağlayan, araziye bağlı gerçek bir haktır.
• Bu durum, Kadastro'ya kayıtlı noter senediyle veya on yıl iyi niyetle ya da yirmi yıl zilyetlikle kazanılan zamanaşımı yoluyla ortaya çıkar.
• Kamu yoluna erişimi olmayan araziler, tazminat karşılığında, Madde 5:57 BW uyarınca zorunlu geçiş hakkı elde edebilir.
• Kullanıcı, yolu en az zahmetli şekilde kullanmalı ve genellikle bakım masraflarını da üstlenmelidir; diğer mal sahibi geçişi engellememelidir.
• Geçiş hakkı, anlaşma yoluyla veya BW'nin 5:78 ve 5:79 maddelerinde belirtilen gerekçelerle mahkeme kararıyla değiştirilebilir veya sona erdirilebilir.

Sık Sorulan Sorular