In its decision of September 29, 2025, GZ 4 Ob 207/24f, the Austrian Supreme Court recently dealt with the requirements for granting a right of way over third-party property. The considerations in this regard open up an opportunity for project developers to create the access roads necessary for obtaining a building permit.

Access to building sites

The creation or modification of a new building site, as well as its approval, requires that it be suitable for this purpose. When assessing the suitability of a building site, the building authority focuses, among other things, on the question of whether the site is accessible. According to the building regulations of the federal states, building sites must be directly or indirectly connected to a designated public traffic area via access roads.

In practice, project developers and investors are often confronted with tricky development issues. Particularly challenging are cases of “encircled” building sites that are not directly adjacent to a public traffic area but must be connected to public traffic areas by connecting strips like “flags.” Since such connecting strips are located on neighboring properties, project developers – assuming good neighborly relations – endeavor to agree on contractual rights of way with their neighbors. Civil law rights of disposal over access roads play a role in building site approval procedures.

However, it is not uncommon for agreement to be impossible to reach with neighbors because they demand excessively high usage or easement fees for concluding an agreement or are simply not interested in doing so.

What options do property owners still have in such cases?

Creating building sites with emergency routes

According to Section 1 of the Act of July 7, 1896, concerning the granting of rights of emergency routes (“Emergency Access Act”), a right of way over third-party properties may be granted by a court. This presupposes that a property lacks the necessary connections to the public road network for proper management or use, for example because a road connection does not exist at all or is inadequate, and expropriation of the necessary land is not possible.
The lack of a right of way must not be attributable to “gross negligence” on the part of the owner of the “distressed property.” Furthermore, the interests of the owner of the distressed property on the one hand and the neighbor or owner of the burdened property on the other must be weighed in favor of granting the right of way. The neighboring property should be burdened as little as possible and its owner should be inconvenienced as little as possible.

Do emergency routes justify the removal of retaining walls and steps?

In case GZ 4 Ob 207/24f, the Supreme Court recently ruled, among other things, that in order to properly use the property in question, whose owners are residents of a garden settlement area, access for cars and trucks (to transport food, household items, fuel, and building materials) and access for the fire department, etc., is necessary for the proper use of the property in question. According to the Supreme Court, the right of emergency routes provides a fundamental right of access for cars, trucks, and public service vehicles.

Section 4(3) of the Emergency Access Act stipulates that emergency access through buildings, enclosed courtyards, and gardens belonging to residential buildings that are fenced off to prevent access by strangers, as well as through properties that cannot be used as emergency access routes for public reasons, is prohibited.

The Supreme Court did not consider the granting of the right of way to be an infringement of the defendant’s privacy or use of the neighboring house, because an existing footpath was “merely to be upgraded to a driveway and the boundary moved back by approximately 2 m” and the neighboring house was 32 m away. The Supreme Court did not consider the removal of a “standard retaining wall including steps and fence (which were to be moved back or replaced by other measures)” to be a “significant interference” on the neighboring property.

In weighing up the interests involved, the Supreme Court also emphasized that only the creation of a connection to the road network – by granting the right of an emergency route – would enable the landowners of the distressed property to use their property, which is zoned as building land, for that purpose. Otherwise, they could only use it as a garden. Without the granting of the right of an emergency route, the distressed property could not be reasonably accessed with an average-width car. In addition, the creation of the right of way would also enable the burdened neighboring property to be developed.

The Supreme Court overturned the decisions of the lower courts and referred the case back to the court of first instance for a new decision after the proceedings had been supplemented, because the specific design of the emergency route requires an expert opinion to be obtained and the case cannot be finally assessed before this has been done.

Conclusion

For project developers who are unable to secure the necessary use of land on neighboring properties by contract, the granting of rights of an emergency route opens up the possibility of creating the development conditions for a building site. However, it is up to the courts to assess on a case-by-case basis whether all the necessary conditions are met and whether the interest in granting the right of way outweighs the burden on the neighboring property. In the course of planning a building site, these conditions should be thoroughly examined in order to avoid any delays in the building permit process and project implementation.