Practice areas: Real Estate
The buurweg — a shared access path under Dutch law — was abolished in 1992 with the introduction of the new Civil Code, but continues to play a role in legal practice to this day. Existing buurwegen are preserved under Section 160 of the Transitional Act NBW. This article explains what a buurweg is, when one came into existence, how it ends, and in what important respects it differs from an easement (right of way).
Under Article 719 of the former Civil Code, a buurweg existed when owners of paths, roads or lanes had given the relevant land a common purpose as a means of access for several neighbours. A buurweg may be located on the land of one or more owners.
In Dutch residential areas, which are often laid out as blocks and courtyard clusters, this has considerable practical significance: many houses have a rear access path connecting the back garden to the public road. Before 1992, that rear access could take the legal form of a buurweg. Since then, new buurwegen can no longer be created — but existing ones remain in full use. In 2017 alone, the search term ‘neighbour road’ on www.rechtspraak.nl yielded 19 more judgments from 2017. This makes the neighbour road doctrine still relevant today.
A buurweg came into existence through an express or tacit declaration of intent by the owner or owners of the land in question — or by a person holding an equivalent proprietary right. Merely tolerating the use of land as a path was insufficient; a positive act of will was required.
Users are themselves responsible for maintaining the buurweg, unless special circumstances give rise to a partial maintenance obligation on the part of the landowner. The owner may, of course, also be a user of the buurweg and therefore bear maintenance obligations in that capacity.
A buurweg ends only by the joint consent of all those entitled to use it. Such consent may be given tacitly. If consent to terminate is absent — or cannot be inferred from silence — the buurweg continues to exist.
The fundamental difference between a buurweg and an easement lies in the legal nature of the right. An easement is a real right (a proprietary right); a buurweg is a personal right (an obligatory right). In practical terms, this has two important consequences.
First, a buurweg need not be evidenced by a notarial deed registered in the public registers, as is required for the creation of an easement. Second, the designation of land as a buurweg is enforceable against a new owner even if that owner consulted the land register and found no reference to a buurweg.
Because a buurweg is not a limited proprietary right, the rules on prescription differ from those applicable to easements. The right of action to remove obstacles that obstruct the buurweg becomes time-barred after 20 years from the day on which immediate removal could first have been demanded. Once that period has elapsed, the right of action to remedy the infringement expires.
Crucially, however — and this is where the buurweg differs from an easement — the substantive right itself survives. The buurweg cannot be extinguished by prescription, because it can only be terminated by the joint consent of all those entitled to it. If the obstacles are removed, the buurweg is immediately usable again as before. Such removal must, of course, be lawful: only the person who placed the obstacles may validly remove them.
In practice, recent rulings on the buurweg broadly revolve around two questions: whether a buurweg came into existence at all, and, if so, whether it was validly terminated. Given the number of judgments that continue to appear each year, the buurweg — more than 30 years after its formal abolition — remains a living doctrine in Dutch property law.
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