Facts
This case concerns a contentious issue in neighbourhood law: the emergency vehicle access route to trapped properties. Of particular relevance is the scope of the right of emergency access and whether the neighbour is obliged to tolerate it. The plaintiff is the owner of a trapped property and wanted to use the existing access road on his neighbour’s property to access his property. The defendant neighbour had initially tolerated this, but then erected a blockade that allowed access on foot but prevented access by car. The neighbour referred the plaintiff to an alternative use of access roads on the neighbouring property and justified this with the shorter distance to the trapped property. In this case, the Higher Regional Court of Schleswig had to deal with the question of whether the right to an emergency access route also requires the use of the emergency access route by a motor vehicle to be tolerated. If this was the case, it had to be discussed whether the vehicle could only be driven on for the purpose of making deliveries or whether it could also be used as a passageway to park on the imprisoned property.
SCOPE OF THE EMERGENCY RIGHT OF WAY
If a property lacks any connection to a public path, then it is a trapped property. The property is then surrounded or trapped by the neighbouring properties. The right of emergency access is always relevant in practice and in this case it was dealt with by the Higher Regional Court of Schleswig. In its judgement of 01.04.2022 – 1 U 71/21, the court defined the scope of the right of emergency access in more detail. The court used Section 917 (1) BGB as the basis for its decision. The purpose of the standard is to ensure the proper use of land. Proper use is to be assessed on the basis of an objective standard with regard to an appropriate, economic use of the property. The main criteria for this are the type of use and the size of the property. The personal needs of the owner or the authorised user as well as the type and manner of previous use are irrelevant for the assessment. A right of emergency access can also arise retrospectively if the type of use of the property changes.
NEIGHBOUR’S DUTY TO TOLERATE
As described above, the scope of the neighbour’s duty to tolerate is based on necessity. With reference to the decision at first instance, the OLG recognised that the owner must at least be able to deliver larger items or everyday products. Restrictions in this respect only arise from the nature of the matter if the local conditions prevent a delivery (impassable terrain or the structural conditions on site make a delivery impossible). Accordingly, the owner of a trapped property can demand the granting of a right of emergency access from his neighbour, which also includes the right to drive motor vehicles. Granting only a ‘pedestrian’ right of emergency access is insufficient, as in this case. This duty to tolerate includes both driving for deliveries and parking on the enclosed property. A maximum speed limit of 5 km/h when using the emergency lane is intended to protect the legal interests of the neighbour against whom the claim is made in order to prevent damage to the ground and noise pollution.
WHICH NEIGHBOUR CAN BE CLAIMED AGAINST?
Which neighbour is obliged to tolerate the right of emergency access is determined in accordance with Section 917 (1) BGB. According to the OLG, it is not exclusively the distance to the property that is caught that is important. Rather, as is so often the case, the interests of the parties must be weighed up. This weighing of interests takes into account the individual burdens on the respective property or for the respective neighbour. Individual burdens are determined, for example, by whether access roads already exist on the neighbouring properties or whether such access roads would have to be created first, and whether the concept of the residential complex provides for proper use of the property even without access by car.