A right of way (recht van overpad) gives the owner of one property the right to cross neighbouring land. It is an easement (erfdienstbaarheid): a real right attached to the land, so it binds every future owner of the land it crosses, whether or not they knew about it when they bought.
An easement arises in two ways: by notarial deed registered in the public registers, or by prescription through long use. A path used for decades is therefore not automatically a right of way, but the absence of a written agreement does not mean no right exists either. Where a plot has no access to a public road at all, a separate remedy applies: the owner can claim a way of necessity (noodweg) over neighbouring land against compensation. Below we explain how each arises, what the owners may demand of each other and how disputes are resolved.
What is a right of way?
A right of way is an easement: a burden on one property for the benefit of another. Under Article 5:70 of the Dutch Civil Code (BW), it obliges the owner of the burdened land to tolerate something, in this case passage.
A right of way always involves two properties. The property that benefits is the dominant estate (heersend erf): for instance a plot behind other houses that is reached over a neighbour’s drive. The property that bears the burden is the servient estate (dienend erf): the land over which the path runs. The owner of the servient estate must allow the owner of the dominant estate to pass over a specific part of the land.
This is not a favour between neighbours. Because it is a real right (zakelijk recht), the right of way stays in place when either property is sold. A new owner of the dominant estate automatically has the right; a new owner of the servient estate is bound by it.
The key terms are set out below.
| Dutch term | English | Meaning |
|---|---|---|
| Recht van overpad | Right of way | The right to cross another’s land to reach your own. |
| Heersend erf | Dominant estate | The property that benefits from the right. |
| Dienend erf | Servient estate | The property over which the right runs. |
| Erfdienstbaarheid | Easement | The general term for a burden on one property for the benefit of another. |
| Noodweg | Way of necessity | A court-ordered access route for land without access to a public road. |
Rights of way are common in the Netherlands, where plots are often small and land ownership in rural areas can be fragmented. They matter to homeowners who need access to a back garden or garage, to farmers who reach their fields over a neighbour’s land and to developers who buy a plot behind existing buildings. When you buy a property, the civil-law notary checks the Land Registry (Kadaster) for registered easements, but not every right appears there.
How is a right of way created?
By a notarial deed registered in the Kadaster, or by prescription after long use. An informal arrangement between neighbours is not a right of way and can in principle be ended.
By notarial deed
The clearest route is establishment (vestiging) by notarial deed. The owners of both properties agree on the terms and ask a civil-law notary (notaris) to record them.
The process has three steps:
- Agreement. The owners agree on the route, the permitted use (on foot only, or also by car or machinery) and arrangements on maintenance, gates and costs.
- Notarial deed. The notary draws up the deed of establishment (akte van vestiging), which identifies the two properties, describes the route, often with a map, and sets out the conditions.
- Registration. The notary registers the deed in the public registers kept by the Kadaster.
Registration is what makes the right of way effective against everyone, including later buyers. An agreement without deed and registration is only a personal contract between the current owners. It does not bind a buyer of the servient land and offers no long-term security.
The deed can also include a qualitative obligation or a so-called perpetual clause (kettingbeding) for obligations that go beyond tolerating passage, such as a duty to contribute to maintenance. Discuss with the notary what exactly should be recorded.
By prescription
A right of way can also arise through long use, known as prescription (verjaring). The law distinguishes two routes, with periods of ten and twenty years.
The first route is acquisitive prescription in good faith. Someone who possesses a right of way in good faith (te goeder trouw) for an uninterrupted period of ten years acquires it (Article 3:99 BW). Good faith means that the user reasonably believed they had the right. Think of a homeowner whose purchase deed refers to a right of way that was never properly established: if that owner uses the path openly for ten years in reliance on the deed, the right can be acquired.
The second route applies even without good faith. If someone has possessed a right of way for twenty years, the owner’s claim to end that possession is time-barred, and the possessor becomes entitled to the right (Articles 3:105 and 3:306 BW). In practice this is the route most often relied on.
Proving prescription is difficult. The person claiming the right must show that the use amounted to possession: it must have been continuous, uninterrupted and unambiguous, in a way that made clear to the owner that a right was being claimed. Use that the owner merely tolerated as a neighbourly gesture does not count. Evidence can include old photographs, witness statements, aerial images and records of maintenance. Courts assess this strictly, which is why a notarial deed is always the safer option.
How does a right of way differ from permission or a public road?
Permission from a neighbour is personal and can in principle be withdrawn; a right of way is a real right that binds later owners. A public road is open to everyone and falls under public law.
Many paths are used on the basis of a simple arrangement between neighbours. Such permission, or mere tolerance, does not create a real right. It usually ends when the neighbour withdraws it or sells the property, although a reasonable notice period may be required if the arrangement has existed for a long time. If you depend on the path, it is worth converting the arrangement into a registered easement.
A private path can also become a public road. Under Article 4 of the Roads Act (Wegenwet), a road becomes public if it has been open to everyone for thirty years, if it has been open to everyone for ten years and maintained by a public authority during that time, or if the owner has made it available to everyone. Once a road is public, the owner must tolerate public use, and the municipality has a say in its closure. This is a different regime from a right of way between two properties.
A right of way also differs from a lease or rental of land. A tenant has a personal right against the landlord, which in principle does not bind the owner’s successors in the same way. And it differs from a right of superficies (opstalrecht), which allows someone to own buildings or works on another person’s land.
Can you ask for payment for a right of way?
Yes, if the parties agree. The deed can provide for a one-off payment or a periodic payment (retributie) from the owner of the dominant estate.
When an easement is created by agreement, the price is a matter for negotiation. The owner of the servient land gives up part of the free use of the land, which may reduce its value; a payment compensates for that. A periodic payment can be linked to the easement in the deed, so that it also applies to later owners.
For a way of necessity the law itself provides for compensation, determined by the court if the parties cannot agree. For a right acquired through prescription there is no compensation: the right arises by operation of law.
What if your land has no access to a public road?
Then you can claim a way of necessity (noodweg) over neighbouring land. This is not an easement, but a statutory right that the court can determine, against compensation for the neighbour.
Under Article 5:57 BW, the owner of land that has no suitable access to a public road can demand that the owners of the surrounding land allow a way of necessity. The court determines the route if the owners cannot agree, taking into account the interests of both sides, and sets the compensation to be paid to the owner of the burdened land.
Special rules apply if the land became enclosed because a larger plot was divided or partly sold. The way of necessity must then in principle be found over the land that was split off, not over the land of an unrelated neighbour. And because the claim is based on need, a way of necessity is no longer justified once the land has its own suitable access to a public road.
What are the rights and duties of each owner?
The user may cross the land as agreed, but must do so in the way least burdensome for the servient land. The owner of the servient land must not obstruct passage, but keeps the right to use and manage their own land.
The content of the right is determined first by the deed of establishment. Where the deed is silent, the law and local custom fill the gaps. If the right arose through prescription, its content follows from the way in which it was actually exercised during the prescription period (Article 5:73 BW).
Duties of the user
The owner of the dominant estate must use the right in the least burdensome way for the servient land. A path through a garden is for passing, not for parking a car or storing materials.
The main duties of the user are:
- Staying within the scope. A right of way established as a footpath cannot be used for cars or heavy machinery.
- Maintenance. The owner of the dominant estate may carry out the works needed to exercise the right and, unless the deed provides otherwise, bears the costs of those works and of keeping them in good condition (Article 5:75 BW).
- No unnecessary nuisance. Closing gates, avoiding excessive noise and not leaving litter are part of using the right properly.
Duties and rights of the owner of the servient land
The owner of the servient estate must not obstruct access. Building a shed on the path, planting trees in the middle of it or parking vehicles on it are not allowed if they prevent or seriously hinder passage.
That does not mean the owner loses all control. A gate is often allowed for security, provided the user receives a key, a code or another simple way through. A locked gate without a key is an obstruction.
The owner of the servient land can also ask for the route to be moved to another part of the land, if the current route has become a serious inconvenience, for instance because it blocks a planned extension. The new route must offer the user equally convenient access. If the parties cannot agree, the court can decide.
What if there is a dispute?
Most disputes are about obstruction, heavier use than agreed or who pays for maintenance. Start with a conversation, then consider mediation, and go to court only as a last resort.
Disputes often arise when circumstances change: a new owner uses the path more intensively, a commercial activity brings delivery vans, or a gate is placed without providing a key. Garden furniture or plants that slowly encroach on the path are another common source of friction.
A step-by-step approach usually works best:
- Direct talks. A calm conversation, with a copy of the deed at hand, often resolves a misunderstanding.
- Neighbourhood mediation or a mediator. Many municipalities offer free neighbourhood mediation (buurtbemiddeling) with trained volunteers; a professional mediator is another option.
- Binding advice. The parties can agree to let an independent expert decide, for instance about a route or the state of maintenance.
- Court proceedings. If the other party persists in obstructing or overusing the path, you can go to court.
The table below summarises the options.
| Method | Suitable for |
|---|---|
| Direct talks | Misunderstandings and minor issues between neighbours who are still on speaking terms. |
| Mediation | Stalled talks where both sides still want a compromise. |
| Binding advice | A specific question on which an expert can decide quickly. |
| Court proceedings | Clear breaches of the deed, disputes about whether a right exists or a party that refuses to cooperate. |
Which court decides?
In urgent cases, for instance when a path is blocked and you cannot reach your home or business, you can ask the preliminary relief judge (voorzieningenrechter) for an order in summary proceedings (kort geding). The judge can order the obstruction to be removed within a short period. Disputes about whether a right of way exists, its route or its content are usually decided in ordinary proceedings before the district court (rechtbank). Whether a lawyer is required depends on the value and type of the claim.
Collecting evidence
Your position depends on your evidence. Start collecting it as soon as a problem arises.
- Photos and videos with dates, showing obstructions, damage or improper use.
- Witness statements from neighbours, visitors or suppliers who saw the problem.
- The notarial deed and an extract from the Kadaster, which set out the rights and duties.
- Correspondence: emails, letters and messages showing your attempts to solve the matter.
If the dispute also involves building work on the neighbouring land, read about the legal options if your neighbours build without a permit, because the two issues often overlap.
Can a right of way be changed or ended?
Yes: by agreement between the owners, recorded in a notarial deed, or by the court on specific statutory grounds. A right of way does not end simply because one owner wants it to.
By agreement
If both owners agree that the right is no longer needed or should be changed, they can record that in a notarial deed. The owner of the dominant estate then waives the right, or the parties agree a new route or new conditions.
The steps mirror the creation of the right: both owners must agree, a notary draws up a deed of cancellation or amendment, and the deed is registered in the Kadaster. Without that registration, the change binds only the current owners and not later buyers.
Through the court
If the owners do not agree, the owner of the servient estate can ask the court to change or cancel the easement. The law sets strict conditions.
Under Article 5:78 BW, the court can cancel an easement if its exercise has become impossible, or if the owner of the dominant estate no longer has a reasonable interest in it and it is not plausible that this interest will return. A typical example is a plot that now has its own direct access to a public road.
Under Article 5:79 BW, the court can also change or cancel an easement on the ground of unforeseen circumstances that make it unreasonable to maintain it unchanged. The court can attach conditions, such as compensation for the owner of the dominant estate. The text of these provisions is available in Book 5 of the Dutch Civil Code on wetten.overheid.nl.
How does it work in practice?
Most right of way cases turn on the wording of the deed and the history of use. The deed is the first document a lawyer or court looks at.
Take a homeowner whose neighbour places a locked gate across a path that, according to a deed from decades ago, gives access to the homeowner’s garage. The homeowner asks for a key; the neighbour refuses. After a written demand and a failed mediation attempt, the homeowner asks the preliminary relief judge to order access. The judge looks at the deed and the situation on the ground and decides whether the gate unlawfully obstructs the right.
Another common situation arises when a property is sold. The buyer of the servient land discovers a right of way only after the transfer, because it arose through prescription and was never registered. The buyer is bound by it if the right indeed arose. Whether it did depends on the evidence of use over the past ten or twenty years.
What should you do next?
Check the deed and the Kadaster, record the facts and try to reach agreement. If the other party obstructs your access, act quickly.
When you buy a property, ask the notary about easements and look at the situation on the ground: a visible path across the land may indicate a right that is not registered. If you rely on a right based on long use, start collecting evidence of that use now, before witnesses move away. And if you want to create, change or end a right of way, have it recorded in a notarial deed and registered, so that later owners are bound.
In summary
- A right of way is an easement: a real right attached to the land that binds future owners.
- It arises by notarial deed registered in the Kadaster, or by prescription after ten years in good faith or twenty years of possession.
- Land without access to a public road can obtain a way of necessity under Article 5:57 BW, against compensation.
- The user must use the path in the least burdensome way and usually bears the maintenance; the other owner must not obstruct passage.
- A right of way can be changed or ended by agreement or, on the grounds in Articles 5:78 and 5:79 BW, by the court.
Frequently asked questions
Can the owner of the servient land place a gate across the path?
Usually yes, for security, provided the gate does not unreasonably hinder access. The user must receive a key, code or other simple way through. A gate that makes passage significantly harder can be an unlawful obstruction.
Who is responsible for maintaining the path?
Unless the deed says otherwise, the owner of the dominant estate bears the costs of the works needed to use the right and of keeping them in good condition. If both owners use the path, they often agree to share costs. Record this in the deed to avoid disputes.
What kind of use is permitted?
That depends on the deed or, if the right arose through prescription, on how it was actually used. A footpath is for walking; a right to use a way by car does not automatically cover heavy vehicles. The user cannot unilaterally increase the burden on the servient land.
What happens when the property is sold?
A right of way is a real right. It passes automatically with the dominant property to the buyer, and a buyer of the servient property is bound by it. That is why registration in the Kadaster matters: it puts buyers on notice. A right that arose through prescription also binds a buyer, even if it is not registered.
Law & More advises property owners, buyers and developers on easements, neighbour disputes and other real estate matters. Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.
