A servitude granting the owner of an immovable property that has no adequate connection to a public road the possibility of passing over neighbouring parcels is known as a right of way. Where a property has no road at all, or where the existing road is not suitable to meet the requirements of its use, the creation of this right may be sought so that the property can be exploited in practical and economic terms.
Granting a right of way is nevertheless not a straightforward outcome. The need must reach the level of a necessity, no other suitable means of access must be available, the route must be fixed in the manner least burdensome to the neighbouring property, and compensation must be paid — these conditions must all be satisfied together.
In this briefing note we address the conditions for creating a right of way, the parties to the action, the criteria observed in fixing the route, how the compensation for the right of way is calculated, and the consequences arising from registration of the right in the land registry.
The Concept of a Right of Way
A right of way is a servitude conferring on the owner of an immovable property that lacks an adequate connection to a public road the power to pass over neighbouring properties. It thereby provides the owner with the access necessary to use the property in accordance with its economic purpose.
The right performs a decisive function for properties that have no road or whose existing road does not meet their requirements. Whether a property can actually be used, whether agricultural activity can be carried out on it, whether it can be built upon and whether it can retain its economic value largely depend on its ability to reach a public road.
The Mandatory (Compulsory) Right of Way
A compulsory right of way arises where it is otherwise impossible for the owner to reach a public road without crossing a neighbouring property. The owner of a property that is left without a road, or whose existing road does not answer its needs, may ask the court to grant a suitable right of way.
The purpose here is to secure the practical exercise of the right of ownership and to preserve the economic value of the property. This assessment is not, however, one-sided; the rights of the owner who must tolerate the passage are considered alongside the interest of the property requiring it.
The Legal Nature of the Right
A right of way is a servitude created in favour of an immovable property. For that reason it is characterised not as a simple power of use granted to a person, but as a right in rem that continues to exist together with the property.
Once the right is created, the property in whose favour it is granted acquires the power to pass along the fixed route; the owner of the servient property, for his part, comes under an obligation to tolerate that use.
In this respect a right of way does not extinguish ownership altogether; within the framework of neighbourhood law and the principle of the equalisation of sacrifice, it narrows the owner’s powers to a certain extent.
The Statutory Basis
The basis of the right of way is Article 747 of the Turkish Civil Code No. 4721:
Turkish Civil Code No. 4721, Article 747
“An owner who does not have a sufficient way out from his immovable property to the public road may request his neighbours to grant a right of way in return for full compensation.”
By this provision the legislator sought to prevent an immovable property from becoming practically and economically unusable because it has been left without a road. At the same time, when the right is created a balance of interests must be observed between the property in need and the servient property; the way must be routed so as to cause the least possible damage to the neighbouring property.
In Which Circumstances May a Right of Way Be Sought?
A right of way may be claimed where the property has no connection to a public road or where the existing road is insufficient to meet the requirements of its use. What is decisive is that the need is genuine and compulsory in character. A right of way cannot be created merely in order to obtain shorter, more comfortable or cheaper access.
In making its assessment the court considers together the purpose for which the property is used, its actual situation, the existing means of access and the alternative routes.
The Property Has No Connection Whatsoever to a Public Road
The most typical field of application of the institution is where the property has no connection at all to a public road. In such a case the owner may request that a suitable right of way be granted over neighbouring properties.
The Existing Road Is Inadequate
Cases also arise in which the property does have a road, but that road is not suitable to meet its requirements. A road that is excessively narrow, that does not allow vehicles to pass or that is in practice unusable may give rise to a claim for a right of way.
Need Arising from Agricultural and Economic Use
The purpose for which the property is used also forms part of the assessment. For properties on which agricultural production is carried out or which are operated for economic purposes, access appropriate to that use must be secured.
Need Arising from Zoning and Development
Existing means of access becoming inadequate as a result of zoning measures or development in the area may likewise give rise to a need for a right of way. In this scenario the court examines together the current use of the property and the development around it.
The Effect of Actual Use
The pattern of actual use is also taken into account in right-of-way actions. Existing roads used for many years and the settled pattern of use may be influential in fixing the route. The mere existence of an actual use is not, however, regarded as sufficient in itself for a right of way to be created.
Conditions for the Action to Succeed
The creation of a right of way depends on the concurrence of a number of conditions adopted in the statute and in the case law. Since this right is an exceptional servitude restricting the ownership of the neighbouring owner, the court weighs both the interest of the property in need and the rights of the servient owner.
In that weighing exercise, the need being compulsory, the absence of another suitable road and the fixing of the route so as to cause the least damage to the neighbouring property carry particular weight.
The Need Must Amount to a Necessity
First of all, the existence of a genuine and compulsory need for a right of way is required. It does not satisfy this condition for the owner merely to seek a shorter, easier or more economical road.
Taking as its basis the property’s existing access situation and the purpose of its use, the court determines whether the need is objectively compulsory.
The Absence of a Suitable Alternative Road
A right of way may be created only where no other suitable means of access is available. If a suitable road giving the property access to a public road exists, the claim is as a rule dismissed.
For that reason the court additionally investigates the alternative routes and the usability of the existing roads.
Fixing the Route That Causes the Least Damage
When the way is fixed, the route causing the least damage to the servient property must be preferred. In this context the manner in which the properties are used, their economic value, the state of development upon them and the form of their actual use are taken into account.
The aim is to strike a balance between the interest of the property in need and the rights of the owner who must tolerate the passage.
Compliance with Neighbourhood Law
The right of way is an institution that has arisen as a reflection of neighbourhood law. Accordingly, when the right is created, the rule of good faith, the nature of the neighbourly relations and the reciprocal interests of the parties are taken into account.
In particular, when the width of the way, its route and the manner of its use are being determined, it is essential that no unnecessary damage be caused to the neighbouring property.
Payment of Compensation for the Right of Way
When a right of way is created, the owner of the property in whose favour it is granted is obliged to pay appropriate compensation to the owner of the servient property.
In fixing that compensation, the nature of the property and the purpose for which it is used, the restriction on use arising from the way and the loss of value occurring in the property are taken as the basis.
The Equalisation of Sacrifice
One of the fundamental principles of right-of-way actions is the equalisation of sacrifice. The principle requires a fair balance to be struck between the interest of the owner in need of a way and the servient owner’s right of ownership.
To that end the court assesses together the fixing of appropriate compensation, the reduction to a minimum of the damage to be caused to the neighbouring property and the routing of the way along the most suitable course.
The Parties to the Action
Correctly identifying the parties in right-of-way actions is decisive for the sound conduct of the proceedings. A failure to join the owners who will be affected by the route may in practice be treated as a ground for reversal.
For that reason, before the action is brought, the parcels over which the requested way will pass and the identity of the owners of those parcels must be established with care.
Standing as Claimant
The action may be brought by the owner of the property that lacks an adequate connection to a public road. In addition, certain persons whose rights over the property are directly affected may in some cases also have a right of action.
In this context, holders of limited rights in rem, heirs, co-owners and the owner of a property with no way out to a road may claim a right of way. The person bringing the action must establish the need for the way and the legal connection between himself and the property.
Standing as Respondent
The action is directed against the owner of the property over which the way is sought. Where the route passes over more than one parcel, all the owners concerned must be joined as parties to the action.
Accordingly, the owners of neighbouring properties who will be directly affected by the right of way, the owners of the other parcels lying along the route and the owner of the property over which the way is to be created may have standing as respondents. Directing the claim against the correct parties and securing mandatory joinder are of critical importance if the action is not to be dismissed on procedural grounds.
The Position in Co-ownership and Joint Ownership
Where the property subject to the way is held in co-ownership in shares or in joint ownership, particular features may arise with regard to the action.
In co-ownership in shares, the co-owners may have a legal interest in a way that directly affects the use of the property. In joint ownership, since the rights are exercised jointly, it is important that all the right holders or heirs take part in the proceedings.
Participation in the Action of the Owners Affected by the Route
Where the way to be created affects more than one property, the owners of those properties must be joined to the action. Otherwise procedural defects arise, because persons in respect of whom a judgment is to be given are not parties to the proceedings.
The court therefore additionally verifies, when fixing the route, whether all the affected owners are before it.
The Criteria Observed in Fixing the Route
The court’s principal function in right-of-way actions is to strike the balance of interests between the property in need and the property over which the way is sought. For that reason not only the existence of the need is examined; the route along which the way is to pass, the damage it will cause to the neighbouring property and the parties’ use of their properties are examined together.
The essential point is that the way be created so as to impose the lowest possible burden on the servient owner.
The Principle of Least Damage
The basic criterion applied in fixing the route is the selection of the road that will cause the least damage to the servient property. In this assessment the court takes into consideration the agricultural character of the properties, their economic value, the development upon them and their current form of use. The objective is to keep the interference with the neighbouring property as limited as possible while the need for a way is met.
Investigation of Alternative Routes
Before a way is created, it is examined whether other roads exist that could provide the property with access to a public road. If a more suitable, shorter or less damaging option exists, the court considers that possibility first.
On-site examination and expert examination therefore occupy a decisive place in right-of-way actions.
Established Actual Use
The existing manner in which the property is used and the roads that have long been in use in the area are also taken into account in fixing the route. Passages that have been used in practice for years may be taken into consideration by the court.
Actual use is not, however, sufficient on its own; it is also required that the need for a way be objectively compulsory.
The Purpose of Use and the Economic Situation of the Property
The purpose for which the property is used likewise becomes important in fixing the route. The form of access required may differ as between agricultural land, residential areas, properties of a commercial character and places used for industrial purposes.
The court therefore assesses together the economic purpose of use of the property and its existing manner of use.
Agricultural Requirements
The right of way carries particular importance for agricultural land. A road of sufficient width and fit for use may be required so that tractors, combine harvesters and similar agricultural machinery can reach the property.
In fixing the route the court also takes account of the agricultural character of the property and its practical requirements of use.
Determining the Compensation for the Right of Way
When a right of way is created, the owner in whose favour it is granted must pay appropriate compensation to the owner of the servient property. The reason is that the way restricts the neighbouring property’s right of ownership to a certain extent and creates a limitation on the use of that property.
The court accordingly fixes appropriate compensation on the basis of the loss of value and the restriction on use arising from the way.
The Legal Nature of the Compensation
The compensation for the right of way is the consideration for the loss of value the owner will suffer and the limitation on use he will have to tolerate as a result of the creation of the right. This payment is regarded as a necessary consequence of the creation of the right of way.
For the right to be created, the compensation fixed must as a rule be met by the claimant.
Calculating the Loss of Value
In fixing the compensation, the loss of value that will arise in the property because of the area set aside for the way is taken as the basis. This calculation assesses together the effect on development, the agricultural or economic use of the property, the nature of the property, and the manner and width of use of the way. Where the way appreciably restricts the use of the property, the compensation may rise correspondingly.
The Role of the Expert Report
Expert examination is decisive in determining the compensation. The court-appointed experts report from a technical standpoint on the nature of the property, the loss of value that will arise because of the way and the most suitable route.
In practice the compensation for the right of way is for the most part awarded in line with those reports.
Deposit of the Compensation with the Court Treasury
The compensation fixed by the court must as a rule be paid into the court treasury before the judgment is enforced. Depositing the compensation is an important condition for the right of way to be created.
In practice the court therefore also orders the deposit of the compensation when it rules that the way be created.
The Consequences of Non-payment
If the compensation fixed is not paid within the period allowed or is not deposited with the treasury, it may not be possible for the right of way to be created. In that event the judgment cannot be enforced, and various legal problems may also arise as to the outcome of the action.
Timely and complete payment of the compensation for the right of way is therefore of great importance.
The Court Proceedings
Right-of-way actions fall among actions concerning rights in rem over immovable property and are conducted within a particular procedural framework. In these actions the court decides not only whether the need exists, but also where the route is to pass, the damage to be caused to the neighbouring property and the compensation to be paid.
On-site examination, expert examination and technical assessments are therefore at the centre of the proceedings.
Subject-matter and Territorial Jurisdiction
Subject-matter jurisdiction in right-of-way actions lies as a rule with the Civil Court of First Instance.
As to territorial jurisdiction, the action is brought before the court of the place where the property is situated. Since the rule of exclusive territorial jurisdiction applies in actions concerning rights in rem over immovable property, the dispute may be heard only in the place where the property is situated.
Court Fees and Litigation Costs
Various litigation costs may arise in right-of-way actions. The items most frequently encountered in practice include service costs, fees paid to the court-appointed experts, expenditure incurred for the on-site examination, and the application and advance court fees. At the end of the proceedings these costs are apportioned between the parties according to the outcome of the action.
Evidence and Proof
The taking of evidence performs a decisive function in right-of-way actions. The claimant is expected to establish that the need for a way exists, that the existing road is inadequate and that the route requested is suitable.
The principal items of evidence taken into consideration by the court are as follows:
- On-site examination carried out at the location
- Technical expert examination
- The statements of the witnesses heard
- Aerial photographs and satellite imagery
- Records obtained from municipal and zoning authorities
- Cadastral maps and sketches
- The land registry records of the property
Among these, on-site examination and expert examination in particular have a direct bearing on the outcome, both in fixing the route and in determining the compensation.
Attorney’s Fees
Since right-of-way actions are counted among actions concerning rights in rem over immovable property, attorney’s fees are as a rule fixed at a flat rate.
The fee is calculated in accordance with the Minimum Attorney Fee Tariff in force on the date of the proceedings and is charged to the relevant party according to whether the action is allowed or dismissed.
Appeal and Appeal on Points of Law
Judgments given in right-of-way actions may, where the conditions are met, be made the subject of appeal and appeal on points of law.
The matters most frequently addressed on review by the higher courts include whether the parties were duly constituted, the adequacy of the expert examination, the appropriateness of the compensation fixed, whether the route was correctly determined and whether the need for a way genuinely exists.
Registration in the Land Registry and Its Effects
Once the judgment creating the right of way becomes final, registration of the right in the land registry arises. Since a right of way is a servitude created in favour of an immovable property, as a rule it takes effect with the character of a right in rem upon being entered in the register.
Upon creation of the right, the property in whose favour the way is granted acquires the power to pass along the fixed route, while the owner of the servient property comes under an obligation to tolerate that use.
Character as a Right in Rem
Because a right of way is created in favour of an immovable property, it has the character of a right in rem. It is therefore not merely a permission to use of a personal character, but a right that continues to exist together with the property and may also be asserted against third parties.
The right continues in accordance with the use of the property in whose favour it was created and produces effects for the new owner as well if the property changes hands.
The Registration Process
Once the judgment becomes final, the right of way is registered in the land registry. With registration the right acquires official status and becomes visible in the title deed record.
In this context the route of the way, the manner of its use and other matters relating to the right may be entered in the register.
The Rights and Obligations of the Parties
The creation of the right gives rise to reciprocal rights and obligations between the parties. The owner in whose favour the way is granted must use the fixed route within the limits drawn by the judgment.
The owner of the servient property, for his part, is bound to tolerate the exercise of the right. At the same time, the right of way may not be exercised in a manner that causes unnecessary damage to the property or exceeds its scope.
Transfer of the Right Together with the Property
Since a right of way is a right in rem attached to the property in whose favour it was created, it passes to the new owner if the property is transferred. The right therefore continues, as a rule, together with the property and independently of the person of the owner.
Termination of the Right of Way
A right of way may come to an end where the need disappears or where the circumstances requiring the exercise of the right cease. In particular, the property subsequently acquiring a direct connection to a public road, or another suitable means of access arising, may give rise to the removal of the right.
Beyond that, agreement between the parties, expropriation of the properties or other legal grounds may also bring about termination.
The Independent Legal Assessment
Right-of-way actions are disputes resting on technical findings rather than on legal characterisation. The fate of the file is most often determined not by the legal arguments in the pleadings but by the measurements taken during the on-site examination, the route proposed by the court-appointed expert and whether the alternative roads have genuinely been investigated. The problem most frequently encountered in practice is the dismissal of actions brought where the need has not reached the level of a necessity and the claimant is merely seeking more convenient access.
The second critical heading is the constitution of the parties. A failure to join the owner of a parcel lying along the route may lead to the judgment being reversed even where the examination of the merits has been completed. In a concrete file it is appropriate to address the following matters as a priority:
- Establishing that the need for a way rests on an objective necessity, as distinct from the pursuit of convenience
- Identifying in advance, from the cadastral map and the land registry record, all the parcels lying along the route, so that the claim is directed against every correct party
- Assessing the alternative means of access technically before the action is brought
- Justifying the width requested in a manner consistent with the agricultural or commercial use requirements of the property
- Planning from the outset the obligation to deposit the compensation for the right of way and the period allowed for it
- Clarifying the capacity to sue in advance where co-ownership in shares or joint ownership is involved
Independent Legal provides advisory services and conducts litigation throughout the entire process in disputes arising from neighbourhood law and immovable property ownership, from the creation of the right of way to the determination of the compensation and the completion of the registration formalities.