Even if you use a path for years, it does not mean that you can use it forever. The Federal Court of Justice has now decided this: There is no kind of “common law” in tenancy law.
There is basically no common law in tenancy law. Even the tenant’s toleration of a specific use does not mean that the tenant has a right to it, explains the German Tenants’ Association (DMB). The landlord may in principle revoke the use that he tolerates for the future.
This applies, for example, to the case when a tenant uses an empty basement and stores things there without having rented the basement. The landlord can demand that the tenant vacates the basement even after years of toleration.
This also applies to the use of the garden or loft that is not rented. The landlord can also prescribe here after years not to grill in the yard or to dry laundry in the attic.
Right of way is not a common right either
The same applies to a right of way that has been tolerated for years, as a judgment of the Federal Court of Justice shows (BGH, ref .: V ZR 155/18). There is a path on the applicant’s property that the neighbors used to get to their garages. Use of the path has been tolerated for decades by previous owners of the land and initially also by the new owner of the property.
But she changed her mind and announced to the neighbors to block the way. She also started building a gate system. The neighbors appealed to an existing right of way and demanded that the road not be blocked.
Unsuccessful, as the BGH decided. The judges ruled that in the relationship between individual property neighbors, a right of way cannot arise from an exercise based on a common right – even if it has been practiced for decades. A right of way that is not entered in the land register can only exist on the basis of contractual agreements or as an emergency right.