In a decision dated 17 July 2019 (File No. III. ÚS 2408/18) , the Constitutional Court considered the application of section 151o (3) of the old Civil Code, which authorises courts to create an easement (right of way over neighbouring land) in favour of a building owner. At the same time, the court reviewed the analogous rules in the new Civil Code (section 1032 (1) (b)), which now explicitly deny this right to persons who lose their original access to a building as a result of their own intentional or grossly negligent action. At issue here was the relevance of section 1032 (1) (b) to a plaintiff who had acquired buildings while the old Civil Code was in effect. Applying the new Civil Code to her situation led in the loss of her right to access her property, which she saw as an impermissible breach of her ownership rights.

According to the Constitutional Court, an owner of real property wishing to establish an easement under section 1029 et seq. of Act no. 89/2012 Coll., the Civil Code, had – even under the old Civil Code had been – to be aware that intentional or grossly negligent action leading to a loss of property access would weaken any request to limit another party’s ownership rights. This means that even under the old Civil Code, an owner’s intentional or grossly negligent could lead to such a petition being dismissed. If under section 1032 (1) (b) of the new Civil Code, the absence of such circumstances is now required for a plaintiff’s request to be granted, this only formally recognises a rule that plaintiffs had to consider in light of Supreme Court case law even before 31 December 2013, i.e. the date until which section 3 (1) of Act no. 40/1964 Coll., the Civil Code, was in effect.

The plaintiff was not entitled to demand the creation of an easement under either the old Civil Code, or the new Civil Code. Both laws merely specified the conditions under which such an authorisation might be sought from a court. The mere fact that courts applying section 1032 (1) (b) of Act no. 89/2012 Coll., the Civil Code, considered the property owner’s actions before the Code took effect did not violate the plaintiff’s fundamental right to own property under Article 11 paragraph 1 of the Charter of Fundamental Rights and Freedoms. Nor did this undermine legal certainty or confidence in the law in violation of Article 1 paragraph 1 of the Czech Constitution.

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