Neighbor road: old law or still (somewhat) current?

You or your legal predecessors have been using a path on the neighbor's property for many years. However, the Land Registry does not list any easement enrolled. You may then be able to appeal to statute of limitations. Under circumstances, however, you may also choose to invoke old law. Indeed, under old law there existed a legal figure known as ‘neighbor road. Real estate lawyer Robert van Ewijk explains in this blog what a right-of-way is and how to invoke it.

Neighbor road ex article 719 BW (old)

Under the law in effect until January 1, 1992, Article 719 BW (old) states:

“Footpaths, avenues or roads common to several neighbors, and which serve them for a way out, cannot be moved, destroyed or used for any other use than that for which they were intended, except with common consent.”

That article defined the so-called ‘neighbor road. Neighbor roads are paths and roads to which the owners of yards have given a common destination. It is a footpath, lane or road that serves as a way out for several neighbors. Admittedly, it is a figure that existed only under old law, but you can still have to deal with it. Mr. F.M. van Cassel-van Zeeland wrote in WPNR 2014/7021 apt: “Neighborhood roads: old, abolished but still alive and kicking.”

Difference between neighbor road and easement (by prescription)

Briefly, the difference with an appeal of the creation of an easement by prescription is that, to do so, you must allege and prove that during the time the prescription was running, you behaved as the possessor of an easement and that this was outwardly apparent. If you had permission to use, this usually means that you behaved as a user of the path and not as a possessor of an easement. The right then does not expire. In the case of a neighboring path, a given consent does not prevent the right from arising. On the contrary, that consent may then indicate that the owners of the yards have given a common use to the road, thus creating the right of neighbor road.

Before taking a position in a dispute over a right of way, it is advisable to think carefully about the consequences of the facts you have to state.

When is a neighbor road

Er kan sprake zijn van een buurweg als een pad of weg voor 1992 een gemeenschappelijke bestemming is gegeven voor meerdere erven. Als het pad of de weg voor de invoering van het nieuwe BW langdurig en ongestoord op een bepaalde manier is gebruikt en die manier van gebruik past bij het gebruik als buurweg, dan bestaat het juridische vermoeden dat van een buurweg sprake is. Dit kan bijvoorbeeld bewezen worden met verklaringen van de omwonenden en de (oud-)eigenaren van de omliggende erven. Zie daarover HR 15 september 2006, NJ 2006/506 ECLI:NL:HR:2006:AX9402.

Does the right of neighbor road still exist?

A neighbor road created under old law continued to exist under the new law. In fact, Article 160 Transitional New Civil Code states:

“The coming into force of the law shall not alter the rights, powers and obligations in respect of a neighboring road which has previously arisen; section 24(1) of Book 3 shall not apply to the destination to such a neighboring road.”

As a result, the owner of the property over which a neighbor road runs will have to (continue to) tolerate the neighbor road being used as such. The mere fact that the designation as a neighbor road is not registered in the Land Registry is irrelevant. This is clear from the conclusion of the above quoted Article 160 Transitional Act new BW. However, the Land Registry then does not provide a complete picture of the rights and obligations associated with the plot. This can lead to disputes. One can therefore choose to formalize the neighbor road, for example by still registering an easement in the Land Registry. This is not necessary, however, but then the ambiguity remains.