In recent cases, the lawyers with Costaș, Negru & Asociații were asked to assist on various matters regarding the right of way or the servitude of way. We therefore comment today on these legal matters.
The right of way, regulated by article 617 of the Civil Code, constitutes a legal limit to the right of ownership, giving its holder the possibility to pass over the land of another for the purpose of access to his own property.
This legal institution, although not often questioned, has a number of essential legal implications, both in terms of establishing and exercising this right and in terms of limiting or protecting the rights of the owner of the affected land.
The purpose of this article is to analyze the legal regime of the right of way, the conditions under which it can be constituted, the ways in which it can be exercised, and the differences with the servitude of way.
On the one hand, the right of way arises by operation of law in favor of the owner of the land deprived of access to the public highway, and the consent of the owner of the land on which access is to be provided is not required. By land without access to the public thoroughfare is meant that real estate which is surrounded by other properties – belonging to persons other than the owner of the dominant land, without the latter having any other possibility of exit onto the public thoroughfare, except by crossing the land of his neighbor.
On the other hand, servitude of way is a dismemberment of the right of private ownership, a real right, expressly provided for by the Civil Code, which takes the form of a charge imposed on the servient land for the use and utility of the dominant land owned by another person. The utility results from the economic use of the dominant land or consists in an increase in its comfort. An servitude may be created on the basis of a legal deed concluded between the owners of the two properties or by usucaption. The servitude is entered in the land register.
An servitude is therefore a dismemberment of a private property right which, in order to exist, must be constituted in one of the ways provided for by law (legal act or usucaption). By contrast, a right of way is a right which arises by operation of law and does not require express stipulation by the parties, but exists by the mere fact of the location of the immovable property in an area without access to the public highway.
This separation of the right of way from servitude was achieved by the legislator through the current Civil Code, as a result of the opinion expressed in the doctrine that the old regulation of natural and legal servitude can no longer be maintained because they were not, in fact, true servitude, but legal restrictions on the right of ownership arising from the neighborhood relations.
In view of this new regulation of the Romanian Civil Code, this separation between the right of way and the servitude has occurred.
As it is well known, in the previous Civil Code, the right of way enjoyed the legal nature of an right of servitude, with all the characteristics deriving from a principal real right, a dismemberment of the right of private property. In the current Civil Code, there is a difference between the two institutions, as described above.
The opinions expressed in the literature on the previous regulation have shown that a distinction should be made between the legal right of way and the right of servitude of way from the perspective of the legal nature of each of the two civil law institutions, but also from the perspective of the legal defenses.
With regard to the extent and the manner of establishing the right of way, the provisions of Article 619 of the Civil Code stipulate that these elements are determined by agreement of the parties, by court judgment or by a continuous use for a period of 10 years.
With regard to these methods of constitution, we must also bear in mind the common provisions adopted by the legislator on the subject of legal limits. According to these provisions of the Civil Code, legal boundaries in private interest may be temporarily modified or abolished by agreement of the parties. In order to be enforceable against third parties, it is necessary to fulfill the publicity formalities required by law.
Then, the right of servitude is constituted for the use and utility of the dominant land – as a rule to increase its comfort in one way or another. The legal right of way is justified, however, by the need to ensure access to the land which has no outlet to the public highway. In this case, it is no longer a question of increasing the amenity of the dominant land, but of ensuring access to it, without which it would not be possible to exercise the property right effectively.
The specialized doctrine has ruled that in order to constitute a right of way, the dominant land must be an enclosed land, in the sense given to this concept in judicial practice. By enclosed land is meant land which is surrounded on all sides by other properties or which has a public road that cannot be used for objective reasons (it crosses a steep slope, a river bed, etc.).
In addition, a place which cannot be accessed to the public highway unless excessive work is carried out and which requires expenditure in excess of the value of the land itself must be considered as an insufficient outlet and therefore as a cul-de-sac. If, however, the dangerous, insufficient or otherwise inconvenient way can be made practicable at reasonable expense on the part of the owner, the land is no longer considered as a cul-de-sac.
By providing for the possibility for the owner of a landlocked place to request passage, the legislator did not leave it up to him to choose the land to be serviced (in the case where there are several neighboring lands with access to the public road) and, for the sake of rationality, neither the choice of the access road by which the exit to the public road is to be made, in the case where several neighboring lands have access to various public roads.
On the contrary, the provisions of Art. 617 para. (2) of the Civil Code, the legislator has established the criteria to be taken into account when establishing the right, namely that the transfer should cause the least inconvenience to the exercise of the right of ownership over the servient land and should entail the least possible prejudice to the owner.
As far as the establishment of the right of way is concerned, the practice of the courts is that, when determining the route of the right of way and the way in which it is to be realized, the interests of the owner of the land over which the right is created must also be respected.
Thus, the crossing must be carried out in such a way as to cause the least possible inconvenience to the exercise of the right of ownership of the land having access to the public highway. To meet this criterion, in principle, the shortest route to the public highway should be chosen.
The criterion of least inconvenience also serves for the choice of the route of the right-of-way when the owner of the landlocked site could claim the right-of-way from several neighbors whose land has access to the public way. In such situations, therefore, the right-of-way would be on the land of the owner who would suffer the least harm.
In conclusion, although both concepts refer to the possibility of crossing another person’s property, servitude of way and rights of way are legally distinct. The right of way is a dismemberment of the right of ownership, which can be constituted on the basis of a legal act concluded between the owners of the two properties or by usucaption. In other words, if we are talking about an servitude, it is created by agreement between the parties.
The right of way arises by operation of law and does not require the owner’s consent – as in the case of an servitude.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by atty. Loredana Feier, from the Cluj Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 18 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.
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