Right of way in the Carpathians: securing legal access to a plot across a neighbour's land

The most expensive problem with a mountain plot is not the slope and not the absence of mains gas. It is the absence of a legally secured right of way. In Ukraine the right to drive across a neighbour's land to reach your own exists from the day it is entered in the State Register of Real Rights. Before that, it is a conversation, not a right.

This is common in the Kosiv district and it never looks like a problem in July. The plot is shown in dry weather, the seller waves towards a track running between two gardens and says everyone drives there. They do. The question is what happens when the neighbour sells to somebody from the city who puts up a gate — and is fully entitled to.

What a servitude is and when you cannot do without one

A land servitude is the right to limited use of somebody else's plot for a need that cannot be met any other way (art. 98 of the Land Code, art. 401 of the Civil Code). For a private buyer the relevant type is the right of passage on foot and the right to drive a vehicle along an existing route (art. 99 of the Land Code). The same mechanism covers running a water pipe, a power cable or a drain across a neighbour's land (art. 404 of the Civil Code).

A servitude does not take ownership away from the neighbour. They still own, use and may sell their plot (art. 98 Land Code, art. 403 Civil Code); they are simply obliged to tolerate your passage within the agreed scope. And it must be exercised in the way least burdensome to the owner — along the edge, along the existing track, not straight across the yard because it is shorter.

Whether you need one at all depends on a single question: whose land you drive over. That is the first thing to look at on the public cadastral map, before you even travel to the viewing.

Why thirty years of habit creates no right

It creates none, and this is not a technicality. The law lists the grounds on which a servitude arises: contract, statute, will, or court decision (art. 402 Civil Code, art. 100 Land Code). Custom is not on the list. Ukrainian law has acquisitive prescription for ownership, but there is no equivalent for servitudes, so decades of driving down a track build nothing.

The second half of the problem is registration. A servitude is a real right derived from ownership and is subject to state registration (art. 4 of the Law on State Registration of Real Rights to Immovable Property and Their Encumbrances). Article 3 of the same law is blunt: such rights arise from the moment of registration. A signed but unregistered agreement is paper that does not bind the next owner of the neighbouring land.

The reverse is also true, and it is the whole point. A registered servitude survives a sale: it stays in force when ownership of the burdened plot passes to somebody else (art. 101 Land Code, art. 403 Civil Code). The register entry is the only form of guarantee here — not the word of a person you met once at a viewing.

Securing a servitude by agreement

This is the cheap, fast route when the neighbour is reasonable. The order of work is as follows.

1. 1Establish exactly whose land you crossThe cadastral number of the burdened plot and its owner. The public cadastral map gives boundaries and the number; an information extract from the State Register of Real Rights gives the owner and any existing encumbrances.
2. 2Put the access corridor on a survey planA land surveyor marks it out on the ground and shows on a plan which strip the route runs along, how wide it is and where it starts. Without that plan you are agreeing on something nobody can point to.
3. 3Agree the scope and the paymentThe owner of the burdened plot is entitled to demand payment for the servitude unless the law provides otherwise (art. 101 Land Code). It can be a lump sum or periodic payments — a matter of negotiation, not a published tariff.
4. 4Sign a written agreementBy agreement of the parties a servitude contract may be notarised (art. 100 Land Code). Notarisation is not required by law, but the notary usually registers the right on the spot, which saves a separate step.
5. 5Register the servitudeRegistration is done by a notary or a state registrar. Until the entry exists, the right does not. Ask to see the completed register entry, not a receipt confirming that documents were filed.
6. 6Keep the extract and the plan with the title documentsWhen you eventually sell, those two documents turn "there is access" into "access is registered", and that difference shows up in the price.

If you are still buying, the cleanest arrangement is for the seller to obtain and register the servitude before completion, or on the same day at the same notary. They know the neighbour; you do not. This matters twice as much when you are buying remotely — the mechanics of that are in our note on buying from abroad by power of attorney.

What it costs and who pays

Only one figure here can be quoted in advance: the administrative fee for registration. Everything else is negotiated, and anyone quoting you a market price for a servitude is inventing it.

Set that against the price of the plot and haggling over access stops making sense. The difference between a registered and an unregistered right of way is a few hundred hryvnia of fees plus a surveyor; losing access devalues the whole plot.

If the neighbour refuses: what a court can do

A court can impose a servitude. Where the parties fail to agree on the servitude or its terms, the dispute is resolved by a court on the claim of the person seeking it (art. 402 Civil Code). It is a genuine route, but count it in months rather than weeks and budget for a land-technical expert report.

The decisive point a claimant must prove is that the need cannot be met any other way (art. 401 Civil Code). If another access exists — longer, less convenient, but lawful — that argues against you. The court also weighs whether the proposed corridor is the least burdensome option for the owner (art. 101 Land Code).

1. Whether an alternative access genuinely does not exist — checked against the cadastre, not against what anyone says.
2. The corridor proposed: its width, position, and how far it runs across the other person's land.
3. How heavily it burdens the owner: whether it cuts the plot in two, passes under windows, or blocks their own use of the land.
4. The scope of use required: foot passage, cars, construction machinery, year-round or seasonal.
5. What payment is fair and what losses of the owner have to be compensated.

The practical consequence for a buyer is simple: while the case runs, you do not build. Machinery cannot get in, concrete cannot be delivered, and the mountain building season is short as it is. A plot with an open access question is not a small discount — it is a start delayed by a year.

What the agreement must say to still work in January

Most servitude agreements are half a page long: the right of passage and vehicle access. A year later it turns out the two sides understood that differently. In the mountains the gap shows up in winter, when the track is under snow and the tractor belongs to the neighbour.

• The type of vehicle, not just "access". Car, lorry with building materials, concrete mixer, fire engine, ambulance. If you are going to build, name construction machinery explicitly or the negotiation restarts on the first delivery day.
• Width and position of the corridor, tied to the survey plan attached to the agreement. "Along the fence" is not a description.
• Who clears snow and who maintains the surface. From December to March this is the whole question. Say who, at whose cost, within what time, and that you may do it yourself if the owner does not.
• Who repairs the track after heavy machinery. A build wrecks a mountain lane; agree in advance that you restore it to its previous condition.
• Utilities in the same corridor. If you will ever run water or a cable, securing it now alongside the access is far cheaper — see utilities for a plot in the Carpathians.
• The term. A servitude may be permanent or fixed-term (art. 98 Land Code). For access to a home, permanent is the only version that makes sense.
• Payment: amount, frequency, indexation. So that the bargaining does not restart from zero in three years.

Three ways to lose a servitude you already hold

A servitude is not a permanent entry. The law lists the grounds for termination (art. 102 Land Code, art. 406 Civil Code), and buyers underrate two of them.

1. Three consecutive years of non-use. This is a standalone ground for termination. Buy the plot, postpone the build, stay away for three years, and the servitude can be ended. If your build has a long pause, keep using the route and keep evidence that you did.
2. No registration. The agreement exists, the entry does not — as far as the register is concerned there is no servitude, and the neighbour's buyer owes you nothing.
3. Wording narrower than the real need. The entry says passage on foot when what you needed was vehicle access. Formally you are entitled to walk, and that is all.

Separately: the owner of the burdened plot can ask a court to terminate a servitude that prevents them using their land for its designated purpose (art. 406 Civil Code). One more reason not to route the corridor through the middle of somebody's holding, even where that is the shortest line.

What to do before you pay a deposit

1. Open the public cadastral map and check whether the plot boundary reaches a road. If it does not, find out whose land lies between you and the road.
2. Order an information extract from the State Register of Real Rights for both the plot you are buying and the plot you drive across: owner and existing encumbrances.
3. Ask the seller directly whether a registered servitude exists and whether you may see the extract. "Everyone drives there" is the answer no.
4. If there is no servitude, make its registration a condition of the deal rather than a promise after it. The seller can always reach the neighbour more easily than you can.
5. Drive the route yourself, ideally not in July. Width, gradient, turning space, the state of it in spring — none of that is visible in documents. Look at the boundary markers while you are there: a boundary argument starts as easily as an access one, which we covered in boundary disputes with neighbours.

When we shortlist land in the Carpathians, access is checked before the viewing rather than after the offer. A plot with clean access costs more and sells faster, and that is fair: the buyer is paying not to end up in court with the person living across the lane.