CONTENTS
- 1. Right of Passage over Surrounding Land | Definition and Legal Basis
- - Legal Basis
- 2. Right of Passage over Surrounding Land | Requirements for Recognition and Scope of Passage
- - Requirements for Recognition
- - Scope of Passage
- - Scope of the Right of Passage
- 3. Right of Passage over Surrounding Land | Lawsuit to Confirm the Right of Passage over Surrounding Land
- - Requirements for the Lawsuit
- - Content of the Claim
- - Main Issues
- - Structure of Proof and Method of Determination
- 4. Right of Passage over Surrounding Land | Checklist
- - Support System of Real Estate Specialist Attorneys
1. Right of Passage over Surrounding Land | Definition and Legal Basis
The right of passage over surrounding land refers to the right of an owner of land that is effectively isolated, because it is not directly connected to a public road, to pass through adjacent land.
This is a right that the Civil Act recognizes on an exceptional basis, in light of the fairness of land use and the need to balance private interests.
Legal Basis
Article 219 of the Civil Act defines matters related to the right of passage over surrounding land as follows.
However, the holder of the right of passage must compensate the owner of the land subject to passage for any harm.
In addition, the holder of the right of passage may not use the land subject to passage exclusively, and must choose the location and method that cause the least harm from the passage.
2. Right of Passage over Surrounding Land | Requirements for Recognition and Scope of Passage
The right of passage over surrounding land is fundamentally an exceptional right, and it may be exercised only within the scope that causes the least harm to the owner of the land subject to passage.
Accordingly, a genuine, practical necessity, rather than mere private convenience, must exist.
Requirements for Recognition
The following requirements must be satisfied for a right of passage to be legally recognized.
: There must be no passage from one's own land to a public road
∙ Unreasonable Alternative Passage
: Even if a passage exists, it must be excessively narrow, or passing through it must involve excessive cost
∙ Principle of Minimum Infringement
: The route and method must cause the least harm to the adjacent land
∙ Damages
: Any harm caused by passage must be compensated
Scope of Passage
The scope of passage is determined individually according to the following criteria(see Supreme Court Decision 96Da10171, decided May 14, 1996).
∙ The purpose of passage and the necessity for the holder of the right of passage
∙ The degree of harm to the owner of the land subject to passage
∙ General societal notions
Accordingly, the width of the passage may need to be secured at a level that allows one automobile to enter and exit, or, conversely, it may be limited to a width that permits only walking or the transport of goods.
However, automobile passage may not be permitted, taking into account the specific necessity and surrounding circumstances.
Scope of the Right of Passage
The right of passage may be exercised only within the minimum necessary scope, and the following limitations are possible.
∙ Limitation on the method of passage
(example : walking only permitted)
In other words, continuous opening may not be demanded, and the ownership of the land subject to passage must be respected.
3. Right of Passage over Surrounding Land | Lawsuit to Confirm the Right of Passage over Surrounding Land
When the owner of adjacent land obstructs or refuses passage even though the right of passage over surrounding land is recognized in the situation, it may be necessary to have the right confirmed through a determination by the court.
In such a case, a civil lawsuit known as a ‘lawsuit to confirm the right of passage over surrounding land’ may be filed to clarify the existence of the right and the scope of passage.
Requirements for the Lawsuit
To file a lawsuit for confirmation of the right of passage, the following matters must be satisfied.
▷ Asserting and proving that the requirements of Article 219 of the Civil Act are satisfied
▷ Proving the fact that one cannot reach a public road
▷ Proving the unreasonableness of any existing alternative passage
Content of the Claim
The content of the claim is composed in the following form (example).
∙ The defendant shall not obstruct the plaintiff's passage
∙ The defendant shall remove any obstacles (fences, gates, etc.) that the defendant has installed
※ In this case, merely asserting the necessity of passage is insufficient, and it is necessary to specifically prove that “the location in question is the only or most suitable route.”
Main Issues
In a lawsuit to confirm the right of passage over surrounding land, the following issues are mainly addressed.
∙ The degree of harm to the owner of the land subject to passage
∙ Whether the purpose of passage is legitimate
(e.g. : whether it is mere convenience or a genuine necessity)
∙ The scope of passage and the possibility of limitations
For example, where the purpose is to visit a grave on the land to tend it, there is a case in which the court found that passage one or two times per year, rather than continuous passage, is sufficient (Supreme Court Decision 2016Da39422, decided January 12, 2017).
This shows that, while recognizing the right of passage over surrounding land, the court maintains the principle that it is "permitted only within the minimum scope."
Structure of Proof and Method of Determination
Where the opposing party (the defendant) who is obstructing the right of passage asserts that “an existing passage exists,” the plaintiff (the person who filed the lawsuit) must prove that such a passage is not effectively usable.
The court determines the genuine necessity of the right of passage as well as the location and scope of the passage through the following methods.
▲ Visual materials such as aerial photographs
▲ Expert appraisal, etc.
4. Right of Passage over Surrounding Land | Checklist
When preparing a lawsuit to confirm the right of passage over surrounding land on one's own, securing objective materials and supporting evidence regarding the on-site situation, as well as the relevant legal principles, is very important.
Based on the checklist below, review the current situation, and proceed with the lawsuit after securing as much specific information and evidence as possible.
Review Item | Description |
Confirming the State of Isolation | Confirm whether there is no path at all from one's own land to a public road, or whether such access is realistically impossible |
Investigation of Alternative Passage | A field survey is necessary to determine whether there is another passage currently in use or existing in the vicinity |
If another passage exists, determine whether it can be proven that the passage is markedly inconvenient or unreasonable | |
Clarification of the Purpose of Passage | Clearly organize whether the passage is based on a genuine necessity rather than mere convenience |
Optimization of the Passage Route | Analyze, using drawings or photographs, which route among the adjacent parcels of land causes the least harm and is most reasonable |
Establishment of a Compensation Plan | Prepare a reasonable compensation plan for the harm caused to the owner of the land subject to passage |
Preparation of Evidentiary Materials | Collect available materials such as a land use plan, aerial photographs, on-site photographs, survey drawings, photographs of traces of passage, and neighbors' written statements |
Clarification of the Purport of the Claim | Draft the content of the claim specifically, including the location and method of passage, time periods, and frequency, to be stated in the complaint |
Review of Litigation Costs | Secure a budget and understand the procedures, taking into account stamp fees, service fees, appraisal costs, and the like |
Decision on Whether to Request an On-Site Inspection | Determine whether it is necessary to request an on-site inspection from the court, and organize the reasons therefor |
Securing Records of Communication | If there are records of requests for and refusals of passage with the opposing party (text messages, recordings, etc.), organize them and prepare so that they can be submitted |
Support System of Real Estate Specialist Attorneys
This law firm has many attorneys, including real estate specialist attorneys registered with the Korean Bar Association and attorneys with an average of more than 10 years of experience.
Accordingly, where a substantive dispute arises, such as obstruction of passage, a damages issue, or a dispute over the scope of passage, legal support is available, ranging from the dispatch of a certified content-proof letter to a lawsuit to confirm the right of passage and a claim for damages.
With the assistance of a real estate specialist attorney familiar with the legal requirements and precedents concerning the right of passage over surrounding land, parties may consider promptly establishing a response strategy suited to their situation.
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