Case Relevance
The right of passage (right-of-way) arises by law in favor of the owner of a property lacking access to a public road (or of a “dead-end location”), and the agreement of the owner of the servient land (over which the passage will occur) is not required. A property lacking access to public road means a parcel that is surrounded by other properties—belonging to persons other than the owner of the dominant parcel—without any other way to reach the public road except by passing over a neighbor’s property.
In practice, situations occur in which, for various reasons, the owner of the servient land does not recognize or accept the right of passage of the dominant parcel’s owner and opposes its exercise, even though, objectively, creating access via another route is not possible. In such cases, the court will establish the right of passage over the servient land, which has access to the public road, in favor of the dominant parcel’s owner.
Summary of the Facts
In fact, in 2002, the claimants and the defendant company entered into a preliminary private sale agreement for the transfer of ownership of a 5,000 sqm piece of land. The defendant assumed the obligation to establish for the sold property a right-of-way easement with vehicle access via the defendant’s access road.
In order to register ownership of the land, the claimants filed a lawsuit. By judgment in the case, the defendant was obliged to enter into the sale agreement with the claimants, and registration in the land registry of the right of ownership over the 5,000 sqm was ordered. That action did not also request the constitution of the easement right promised in the preliminary agreement.
In this context, though the claimants actually used access to the public road via the defendant’s property, that access lacked legal basis.
PROCEEDINGS ON THE MERITS, AT TURDA JUSTICE COURT
Through the statement of claim, the claimants, represented by Brisc Legal’s team of lawyers, requested establishment of a right of passage in favor of their properties, over the road owned by the defendant, based on the defendant’s obligation assumed in the preliminary sale-purchase agreement made in 2002, and considering the fact pattern of properties constituting a legally “dead-end location.”
The claimants, assisted by real estate lawyers, showed that upon entry into force of the new Civil Code, in absence of a legal or contractual easement, their right to request passage over the defendant’s land was born under the new regulations.
They argued that the difference between the old regulation under the prior code and the new code is precisely the substitution of the legal easement of passage with the institution of legal right of passage, as a limitation of the property right over the neighbor’s parcel on which access to the public road is to be made.
Conducting a Cadastral and Topographical Expert Report
By expert report requested in the case by the property-and-land lawyers, it was established that the defendant’s land is used as an access road to the claimants’ properties. The Brisc Legal team showed that all plots in the respective zone access the public road via lands owned by the defendant.
Not least, the claimants, through their lawyer, proved that the access cannot be made through the alternative route proposed by the defendant because in that area there is a difference in level and an inclination slope of 40%, thus making the creation of an access road through that location not possible under suitable conditions.
Through their written defense, the defendant claimed that the claimants did not justify any direct interest in bringing the action and in registration of the right in the land registry, because for more than 10 years they had used directly the right of passage. The defendant also asserted that the claimants do not respect the PUZ documentation by which their land became intravilan (included in the built-zone area) and on the basis of which they obtained building permits for houses, in the sense that they oppose subdivision of their own land for the construction of a public road.
The claimants, through the real estate attorney Horațiu Brisc, argued that the local public authority did not take the legal measures required to implement measures adopted through the PUZ documentation, so that one cannot speak of an unfulfilled obligation on the part of the claimants. The claimants showed that their right to have access to the public road cannot be denied or conditioned until the legal situation of the road regulated by the local council decision is resolved.
Action Admitted by Turda Justice Court
Turda Justice Court, adopting the arguments developed by the Brisc Legal team, ruled in favor of the claimants and decided that the institution of a right of passage in favor of them is justified in the manner requested, based on the obligations assumed by the defendant through the preliminary agreement, the manner in which all parcels in the area have been subdivided, and taking into account the conclusions of the expert report.
The court specified that regardless of whether the claimants have for a time exercised in fact the right of passage uninterrupted by the defendant, that does not mean that claimants lack interest in realizing their legal and factual reality of the right and in its registration in the land registry.