What is the difference between a right of passage on foot and by vehicle across land? An explanation of the differences in the content and scope of the entitlements, with practical examples.
A right of way on foot across land is an easement entitling a specific person, or the owner of another property, to pass on foot across someone else's land. It serves above all to secure access to a property that has no connection of its own to a public road, and its scope is determined by the agreement of the parties or by a court decision. Where a right of way on foot (the so-called right of way) has been agreed, it cannot be unilaterally extended to cover passage by motor vehicles.
The beneficiary of the easement exercises the right of way primarily for their own needs. In the case of easements attached to a specific person (e.g. person X holds a right of way), however, its exercise reasonably extends to persons close to them, in particular a spouse or ordinary visitors, provided this does not amount to a separate and independent use of the right by third parties (e.g. judgment of the Supreme Court of the Czech Republic, file no. 22Cdo 555/2004 or 22Cdo 1726/2007, R 14/1988). The right of way also extends to the beneficiary's tenants and their family members (Spáčil, p. 44).
If, however, large numbers of visitors or customers of a business establishment access the property, the easement may be exercised beyond its agreed scope. The burdened owner is obliged to tolerate only such interference with their ownership right as they could objectively have contemplated when the easement was established. In such a case, the burdened owner has available an action similar to the one used against nuisance by emissions (e.g. dust, bees and the like), by which they may seek an order for cessation of interference with their ownership right beyond the extent arising from the easement.
A right of way by vehicle across land is an easement entitling a specific person, or the owner of another property, to use someone else's land for passage by means of transport, in particular motor vehicles. It usually serves to secure access to a property that is not directly connected to a public road, and its scope and manner of exercise are determined by the agreement of the parties or by a court decision. According to the prevailing views in legal literature, this right cannot be extended to third parties (e.g. visitors). If the right of way by vehicle serves a specific residential house, it may also be used by postal carriers and municipal-services workers.
In the case of a right of way by vehicle, a technical or other limitation on vehicles may also be agreed or set by the court, e.g. the type of vehicles (passenger cars, vans, agricultural machinery, service vehicles) or their weight limit (up to 3.5 t or 7.5 t), where this is necessary to maintain a reasonable balance between the ownership right of the burdened owner and the beneficiary's need for access.
The main difference between a right of way on foot and a right of way by vehicle lies in the manner in which the other person's land is used. A right of way on foot permits only the movement of persons on foot. If the right is formulated as a "right of way by vehicle", passage on foot is generally regarded as its natural component, unless the agreement or decision provides otherwise. A right of way by vehicle therefore covers both passage on foot and the use of means of transport, in particular motor vehicles, and thus represents a more extensive interference with the use of the burdened land.
A right of way on foot or by vehicle is established above all by a contract on the creation of an easement, which must be concluded in writing, with the right subsequently arising upon registration in the Land Registry (kataster). It may also arise by a court decision, for example when a necessary way is established because the owner of a property has no secured access to a public road. In exceptional cases it may also arise by operation of law, where legislation expressly so provides.
In practice, the scope of an easement is determined primarily by how the right is established in the contract or the court decision. It usually includes a precise definition of the entitlement (e.g. passage on foot or by vehicle), the specific part of the land, the manner of its use, and possibly also restrictions such as the selection of entitled persons, the type of vehicles, the time when the right may be exercised or the purpose of use. In practice it is crucial that the scope be unambiguous, because an unclear or vague definition often leads to disputes between the owner of the burdened land and the beneficiary of the easement.
The owner of the burdened land cannot unilaterally prevent passage on foot or by vehicle if an easement has been validly established over the land. They are obliged to tolerate the exercise of this right to the extent agreed or determined by the court, and must not restrict or prevent it themselves. If they believe the easement is being exercised beyond its scope, they may seek protection of their rights through the courts, not by a unilateral prohibition. The latter constitutes so-called offensive self-help, which is prohibited by law.
If the owner of the burdened land, or a third party, restricts or prevents the exercise of the easement, the beneficiary may seek protection of their right in particular by an action for cessation of interference or for removal of obstacles. In urgent cases, they may also apply for an interim measure by which the court temporarily regulates the situation and secures the undisturbed exercise of the easement.
If, however, the beneficiary fails to exercise the right for a prolonged period, the right may also be extinguished as a result of non-use (limitation), as a rule where the easement is not exercised for a period of 10 years.
Compensation for an easement of passage on foot or by vehicle is usually determined by agreement in the contract on the creation of the easement, where the parties agree its amount or the method of calculation as consideration for the restriction of the ownership right. If no agreement is reached, the easement (in particular in cases of a necessary way) may be established by a court decision, which at the same time determines reasonable compensation for the owner of the burdened land.
The legal relationship arising from an easement may also give rise to further obligations of the beneficiary connected with the use of another person's property (§ 151n(3) of the Slovak Civil Code). The rule is that whoever is entitled under an easement to use another person's property is obliged to bear a reasonable share of the costs of its preservation and repairs, unless the parties agree otherwise. If, however, the property is also used by the owner, the costs are shared in proportion to their respective use. In practice, this may include, for example, the beneficiary's obligation to contribute to repairs of a ramp, gate or access road, insofar as these serve the exercise of the easement. If the beneficiary fails to fulfil this obligation, the owner may seek payment of the costs by an action for performance. Case law also confirms that even where the easement was established free of charge, the beneficiary's obligation to bear a reasonable share of the costs of preserving and repairing the used part of the property remains unaffected.
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