Do you own or are you purchasing land which is crossed by a road or way? That road need not be private, and the landowner cannot simply decide to close access to the road.
Do you own or are you purchasing land which is crossed by a road or way? The road may be private and for the use of the landowner only, but it may also be publicly accessible to third parties, in which case the owner cannot simply decide to close the road to access.
In practice, it is not uncommon for a buyer to find a plot of land with a family house, field, meadow or other type of land, conclude a purchase agreement and then discover that there is a path across their land that is publicly accessible to third parties. It turns out that the land cannot be completely fenced off and third parties cannot be prevented from accessing the path leading across it.
Such situations occur even when the buyer has obtained information about the land in advance from the land registry. At first glance, roads and ways can be seen in the land registry if they form a separate parcel. These include motorways, roads and local lanes, for which the type of land use is directly indicated as “other roads and ways”. However, unlike the aforementioned roads, special-purpose roads may form part of the land (a contrario § 9(1) of the Land Registry Act). For this reason, their existence cannot be gleaned from in the land registry. This information cannot be inferred from the information about the land in question of which the road is a part, from its type or manner of use, as there is no explicit note to the effect that it is used as a road. For such land, the type of land may be stated, e.g. arable land. The land may therefore appear to be completely unencumbered by any publicly accessible road. Although nothing about the road can be learned from the information about the land, it may be visible when viewed via remote access to the cadastral orthophoto map. In principle, it may be sufficient to view the orthophoto map maintained by any operator. It may be an asphalt road that is obvious at first glance or a well-trodden path running across the land that is barely visible on the map. The road may not always be visible on the orthophoto map. However, if such a road is visible, it is a good idea to take note and find out whether it is a private or public road.
Whether a road is publicly accessible is based on a different registration system than the one used by the land registry. According to Act No. 13/1997 Coll., the Road Act, as amended, these roads fall into the category of special-purpose roads. The classification of roads falls within the competence of road administration authorities. State administration in matters of public special-purpose roads is carried out by municipal authorities with extended powers (Section 40 of the Road Act).
Special-purpose road
The Road Act defines a special-purpose road as a road that serves to connect individual properties for the needs of the owners of these properties or to connect these properties with other roads or for the management of agricultural and forest land (Section 7(1) of the Road Act). The law distinguishes between two categories of special-purpose roads, which differ in whether or not they are publicly accessible. Roads falling under Section 7(1) of the Road Act are publicly accessible special-purpose roads, while special-purpose roads regulated by Section 7(2) of the Road Act are not publicly accessible. These are surface-level routes in an enclosed area or building that serve the needs of the owner or operator of the enclosed area or building. These special-purpose ways are accessible to the extent and in the manner determined by the owner or operator of the enclosed area or building. In case of doubt as to whether the context of the surface-level route qualifies as an enclosed area or building, the competent road administration authority shall decide.
Publicly accessible special-purpose roads
Publicly accessible special-purpose roads are a category of roads that do not require any administrative decision for them to come into existence. Rather, roads are created by fulfilling the defining characteristics. These characteristics are established by the decision-making practice of the courts:
1. A permanent and clearly visible traffic route intended for use by vehicles or pedestrians within the meaning of Section 2(1) of the Road Act; 2. The road meets the definition of a special-purpose road within the meaning of Section 7(1) of the Road Act; 3. The owner of the land has agreed to its general use (see, for example, the ruling of the Constitutional Court of 9 January 2008, file no. II. ÚS 268/06, point 33); and 4. There exists a need for the traffic route, in that it represents an essential link between points for the owners of the specific properties.
A road is considered to be a publicly accessible special-purpose road if all of the above characteristics are met. If any of the characteristics are missing, the road cannot be considered a publicly accessible special-purpose road.
Consent of the owner
The most debated feature of publicly accessible special-purpose roads is the consent of the landowner. This defining feature may give the impression that it is entirely up to the landowner to decide whether to allow public access to the road or to close it. This is however not quite true. A publicly accessible special-purpose road cannot be created without the consent of the owner, but once consent has been granted and the road becomes publicly accessible, its status cannot simply be changed back to non-public without further ado.
Case law agrees that once consent has been granted, it is binding on legal successors. If a publicly accessible special-purpose road is created, its legal status is binding on future landowners, who are not entitled to close the road at their own discretion. In other words, the road remains publicly accessible even after the land is purchased or inherited by another owner. Such situations are a common occurrence. For instance, if a road was publicly accessible when the land was owned by grandparents, it remains publicly accessible even if the land is now owned by their grandson, who cannot fence off the road and make it inaccessible to the public, even if he does not agree with its public use.
Exceptions to this rule are cases where the road is acquired from a corporation under public law. It is not the case that consent is never binding on legal successors when acquiring from a corporation under public law, but the binding nature of consent cannot be automatically presumed without further ado. In such cases, the specific circumstances of the acquisition must always be assessed individually. For example, in a dispute concerning acquisition in restitution, the Constitutional Court found that consent to the general use of roads had not in fact passed to the legal successor.
Consent to the public use of a purpose-built road may also be granted tacitly. It is therefore sometimes in dispute whether consent has been granted. The criteria for assessing whether consent has been granted are set by the courts. For example, tacit consent cannot be inferred simply from the fact that the owner or his legal predecessor did not fence off the special-purpose road or mark it as private property with no trespassing. On the other hand, the inaction of an owner who has tolerated the use of his land by the public for a long time is sufficient for consent to be implied. This means that if a road begins to be used by the public, the owner must take action against such use. Otherwise, their failure to act will be regarded as consent to public use. In cases of doubt as to whether implied consent has been granted, case law tends to rule in favor of the landowner.
Conversely, the establishment of an easement may indicate that the road is for private use, such that the owner has selected a specific group of people who may also use the road. The Supreme Administrative Court concluded in its decision: “The fact that the landowner or his legal predecessor regulated the right of way and passage in the form of an easement tends to indicate that he did not intend to allow unlimited use of the road on his land by an indefinite group of third parties.”
How to restrict public use of a road
As discussed above, once consent to the public use of a special-purpose road has been granted, the landowner is not entitled to change its public use status solely on the basis of their own decision. Restricting the use of a road that is open to the public is prohibited by law. Arbitrary action by the owner, such as fencing off the road or otherwise preventing third parties from entering, is a misdemeanor and is punishable by law. The resolution of such conflicts currently favors public use. When resolving disputes, the preferred approach is to order the removal of fences and other fixed obstacles and to impose a fine on the landowner, rather than removing the road from the list of publicly accessible special-purpose roads and leaving it to private use.
If the owner wishes to restrict public use of the road, this must be done through administrative proceedings. The competent road administration authority of the municipal authority with extended powers may, at the request of the owner of a special-purpose road, modify or restrict public access to the special-purpose road if this is necessary to protect the legitimate interests of the owner (Section 7(1) of the Road Act). The issuance of a decision restricting the use of a road is not automatic; the applicant is required to prove that the use of the road needs to be restricted. Administrative authorities do not usually decide to completely abolish public use of a road. If they find that there is a reason to restrict the use of a road, they will typically restrict its use in a certain way, e.g. by restricting its use by heavy duty trucks (LGV).
Summary
In conclusion, the consent of the owner is required for the creation of a publicly accessible special-purpose road. Such consent may also be granted tacitly. However, once a publicly accessible special-purpose road has been created, it is difficult to change its status. The road remains publicly accessible even when acquired by a new owner (and even if the new owner does not actually agree to its public use). Any restrictions on the use of a publicly accessible special-purpose road must be requested from the road administration authority.
When acquiring land through which a road runs, it is advisable to verify the manner of its use. In case of doubt, it is advisable to contact the road administration authority.
Finally, if you want to verify whether you are acquiring land with public-access routes, if you own a publicly accessible road and wish to restrict its public use, or if you are dealing with another issue related to special-purpose roads, you may turn to us. We will discuss the possible solutions with you and guide you through the entire process.
Source: – Judgment of the Supreme Administrative Court of 27 October 2016, 9 As 141/2016. – Judgment of the Supreme Administrative Court of 29 August 2017, 7 As 63/2017-48, see points 14-17. – Constitutional Court ruling of 9 January 2008, file No. II. ÚS 268/06, point 33. – Judgment of the Supreme Administrative Court of 30 November 2015, Ref. No. 6 As 213/2015 – 14, published under No. 3371/2016 Coll. of the Supreme Administrative Court, in particular point 9. – The previously held view that, once consent has been granted, it is no longer necessary to examine the last criterion, i.e. the indispensability of the need for the transport route, has been superseded (see the resolution of the enlarged panel of the Supreme Administrative Court of 2 February 2017, file No. 5 As 140/2014 – 76, published under No. 3540/2017 Coll. NSS, and the subsequent judgment of the Supreme Administrative Court of 30 March 2017, Ref. No. 5 As 140/2014 – 85, published under No. 3571/2017 Coll. NSS). – Constitutional Court ruling of 9 January 2008, file No. II. ÚS 268/06. – Judgment of the Supreme Administrative Court of 22 December 2009, 1 As 76/2009-60, published under No. 2028/2010 Coll. NSS. – Judgment of the Supreme Court dated 26 June 2019, 22 Cdo 2378/2016, published under No. C 18848 in the Collection of Civil Decisions and Opinions of the Supreme Court. – Judgment of the Supreme Court of 26 June 2019, 22 Cdo 2378/2016, published under No. C 18848 in the Collection of Civil Decisions and Opinions of the Supreme Court; see also the judgment of the Supreme Administrative Court of 9 November 2011, 9 As 55/2011-141. – Judgment of the Supreme Administrative Court dated 22 December 2009, 1 As 76/2009-60, published under No. 2028/2010 Coll. of Judgments of the Supreme Administrative Court.
