GER: Easements Require Land Registry Entry

Jan 29, 2026 Benn-Ibler Rechtsanwälte

The German Federal Court of Justice (BGH) examined when a conditional civil law right to obtain an easement for rights of way may exist.

Transfer of ownership without registration of the right of way in the land registry

In the cased at hand, after the division of land, multiple parcels had been created and an access easement was designated for one of these parcels. An earlier purchase agreement had stipulated the creation of a right of way to be registered in rem, which received approval for entry. Nevertheless, the easement was not recorded in the land register. The properties were subsequently transferred several times. In the end, the plaintiffs sought either an easement or a right of way from the defendants, but the lower courts granted only the right of way.

No contractual or contingent rights without land register entry

The German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH) rejected the contractual request to grant the easement. Typically, obligations from earlier purchase agreements do not apply to legal successors under the law of obligations. Additionally, a right of way cannot be established simply through long-term use or due to a building obligation imposed by public law. 

The BGH explained that a binding agreement alone does not automatically create a conditional right to obtain an easement. For the easement to be officially recorded, the property owner’s consent is necessary according to procedural law.

The holder of the dominant estate is not entitled to assert a claim against the successor of the servient estate based on subsequent declarations of intent concerning a potential expectant right.

BGH V ZR 143/24 (27 June 2025)