Taking Counsel: Demanding of access over an immovable of another and compensation for constructions over boundary of neighboring immovables

  • 2008-09-10
  • By Pille Pettai [Glikman & Partnerid]
Despite the fact that the land reform has generally been completed in Estonia, some results of the land reform still have impact on owners of registered property. Problems may arise if, upon determining borders of immovables established in the course of land reform, it has not been taken into account that a building located on the property projects to the neighboring immovable or if no access has been left to an immovable from a public road.   

According to the Law of Property Act an immovable must have an access from a public road. An owner whose immovable lacks such an access has the right to demand access over an immovable of another.  
When using such rights the interests of the owner of the other immovable must be considered, which is the main ground for disputes.
The Supreme Court has explained the problems related to access right in its May 21 decision in civil matter number 3-2-1-41-08.

The Supreme Court has referred to the principle by which a claim demanding access over an immovable of another is reasoned. If the immovable has no access at all from a public road, the access is possible according to land consolidation, and the interest to get access overweighs rights of the owner of the other immovable through which the access is asked, taking into account the restriction deriving from the access. If an immovable has partial access from a public road, then, in general, additional access need not be granted, as the interests of the owner of the immovable being encumbered must also be considered.

The mere fact that the access exists but is impracticable is not a good reason for establishing additional access. Furthermore, if an access from a public road exists, a request to have access by vehicle must also be separately reasoned. The Supreme Court has also explained that granting an access shall not include a right to a permanent parking place. Such a right can only be obtained by mutual agreement with the owner of the other immovable. 

These aspects have also been treated in the aforementioned Supreme Court decision. The Supreme Court is of the opinion that although the Law of Property Act in itself does not regulate aspects related to constructions located on the immovable of another due to the ownership reform, still the relevant provisions can also be used in such cases.

A part of construction which projects over the boundary of an immovable is part of the immovable from whose boundaries it emerges. At the same time, the owner of the neighboring immovable, into whose boundaries the construction projects, has the right to demand acquisition of or periodic compensation from the owner of the construction for the piece of land under the part of the construction which projects over the boundary of the owner's immovable, as the owner himself cannot use this piece of land anymore.   

In respect of the compensation sum the court has pointed out that the interests of owners of both immovables must be considered upon establishing the compensation. The compensation must be sufficient to cover the loss of ownership to the owner of the immovable to whose boundaries the construction projects. Thus, the compensation should grant to such owner the same status which he would have had if he could use this piece of land himself. Upon establishing the compensation the part of construction located on the immovable should be hypothetically removed and thereafter it should be assessed whether and for which benefits the owner might use this land plot, taking into account other buildings, construction and other restrictions and all other aspects.

 The court has also indicated a possibility that depending on the circumstances, it is also possible to take car-parking possibility as grounds for establishing the compensation. In such case it should also be considered whether parking is possible at all on this immovable and what would be the related costs.  

As we have mentioned before, upon establishing the compensation the interests of the owner of the immovable whose construction projects over the boundary must also be considered.   Namely, a material aspect may be the reason why the building projects over the boundary. If such has been caused due to ownership reform and by circumstances not dependent on the owner of the building, then it is possible to establish the compensation significantly below the market price. The minimum compensation may be the amount of land tax corresponding to the land plot under the construction. 

Pille Pettai is a lawyer at the law firm Glikman & Partnerid,  a member of Baltic Legal Solutions, a pan-Baltic integrated legal network of law firms which includes Kronbergs & Cukste in Estonia and Jurevicius, Balciunas & Bartkus in Lithuania, dedicated to providing a quality 'one-stop shop' approach to clients' needs in the Baltics.