Supreme Court: "Right of Passage Over Neighboring Land Recognized If Other Routes Are Unsuitable"

The Supreme Court has ruled that the right of passage over neighboring land can be recognized even if there are other access routes around the land, as long as those routes are not suitable for agricultural use.

Supreme Court, Seocho-gu, Seoul.

According to the legal community on August 27, the First Division of the Supreme Court (Presiding Justice Shin Sookhee) overturned the lower court's ruling, which had dismissed a lawsuit filed by Mr. A, the owner of a 1,000-square-meter plot in Gwangju, against his neighbor Mr. B, and remanded the case to the Suwon High Court. The lawsuit sought to prohibit obstruction of passage and to confirm the right of passage over neighboring land.

Mr. A acquired ownership of a 1,000-square-meter plot in Gwangju in December 2020 and cultivated crops such as watermelon and Aralia elata. Since there was no access road to the land, Mr. A used Mr. B's adjacent land to enter and exit. In August of the following year, Mr. B installed a fence on his property, blocking Mr. A's passage and leading to a dispute. As a result, Mr. A filed a lawsuit against Mr. B, seeking the removal of the fence and a prohibition on obstructing passage.

The court of first instance ruled in favor of Mr. A, stating, "The fence must be removed and the right of passage over neighboring land should be recognized." However, the appellate court ruled against Mr. A, stating, "It is difficult to see the defendant's land as the only access route, and passing through the forest land does not incur excessive costs."

The Supreme Court overturned this decision. The bench stated, "The right of passage over neighboring land can be recognized not only when the landowner cannot access the property at all without using neighboring land as a passage, but also when access would require excessive costs. It can also be recognized if an existing route does not function adequately as a passage." The court explained, "In this case, the forest land has steep slopes and sections deeply dug by drainage channels, making it extremely difficult to transport crops or farming equipment, even if people can walk through. The distance is 76 meters and passage would require crossing three separate parcels owned by different people."