Not all roads lead to your neighbour's!

Not all roads lead to your neighbour's!

I bought a plot of land with a right of way to the neighbouring plot, but the right of way no longer exists because the neighbour has built an opening on the other side of his property so that he can access the road directly from his property. I've tried to talk to him about removing the right of way, but he refuses. I've tried to talk to him about getting rid of this right of way, but he refuses, saying that even if he doesn't use the old one any more, "you never know"... What can I do?

Antonio, Vaud

In itself, an easement is an agreement between two neighbours that gives one the right to pass (on foot or with a vehicle) over the property of the other, which the latter is obliged to tolerate. The easement is generally entered in the Land Register, in favour of a parcel rather than a specific person. Thus, in the event of a sale, the easement does not lapse with the change of owner, as the right remains attached to the land.

Under the Swiss Civil Code, more specifically Article 736, the encumbered owner may demand the cancellation of an easement that has outlived its usefulness to the dominant land. This rather peculiar terminology means that the owner of the land that must tolerate the exercise of the right provided for by the easement (known as the "servient" land) can take action to have the right of way entered in the Land Register on his or her parcel cancelled in favour of the other land (the beneficiary being the "dominant" land).

To have an easement that no longer serves any purpose removed, there is first of all the amicable route, which you have apparently tried, without success. If your neighbour had agreed to waive his right, you could have obtained the desired cancellation by having him co-sign a written request to the Land Registry, which could then have proceeded in accordance with this joint request and cancelled the easement.

If no agreement can be reached between the owners, the matter must be referred to the civil court of first instance. This procedure will begin with a conciliation phase, during which the judge will again try to bring you and your neighbour to an agreement. If no agreement can be reached, you will have to bring an action on the merits and ask the judge to order the cancellation of the unused easement. The judge will have to examine what the easement actually involves, if necessary by interpreting its content, and decide whether it has definitively lost all usefulness or whether, on the contrary, the interest in this right could possibly be revived in the future.

In your case, if the judge comes to the conclusion that the original right of way no longer serves any purpose, since access to your neighbour's plot of land is guaranteed by another road, he may rule that the easement no longer serves any purpose and order its cancellation. On the basis of such a ruling, you can then apply to the Land Registry to have the easement deleted.