There are sidewalks, and then there are sidewalks

The Constitutional Court has recently issued a judgment in the case dealing with an issue of whether a sidewalk is a separate item in the meaning of law, or part of a land plot. By its judgement, it reversed the lower courts´ decisions in the matter.

The sidewalk case (Resolution No. III. ÚS 2280/18 of 25 June 2019) involved a lengthy dispute between a business company owning a plot of land and a municipality building a local road on that land, along with a sidewalk. The road was owned by the municipality. The private company’s land was connected to the road by a driveway, and during the driveway construction, a part of the sidewalk was repaved. The company believed the sidewalk was a part of their land plot, while the municipality considered it a separate immovable item belonging to them.

The sidewalk was a reinforced asphalt surface lined on one side with a movable sheet metal fence, beyond which was a plot of land of another business entity. The regional court concluded that the sidewalk could not be viewed as a structure in the meaning of civil law and as such a separate immovable item, and was therefore a part of the land owned by the business company. The court supported this conclusion by arguing that a structure consisting solely of a surface finish of land is not in principle a separate item. The Supreme Court then admitted that this was a borderline case.

The dispute over the sidewalk then appeared before the Constitutional Court. The Constitutional Court reversed the regional court´s judgement and ruled contrary to the existing case law and its own previous judgment: previously, it had held that where the surface of a land plot had been finished by layers of natural construction materials in such manner that it was impossible to clearly determine where the land ended and the structure began, this did not constitute a separate item (for instance tennis courts, car parks, etc.).

In the case in question, the sidewalk was first fortified by cinder, then gravel and then an upper layer of several centimetres of asphalt surface, while on one side, the sidewalk was delineated by a sheet metal fence and on the other side by a concrete kerb. The Constitutional Court concluded that this was not simply a reinforced surface but a separate structure, therefore a separate item in the meaning of civil law. The Constitutional Court thus held that the sidewalk was a part of the road as a separate item, therefore owned by the municipality.

Taxpayers who on their land have a local public road with a sidewalk should thus beware, as the wrong qualification of the ownership of such a sidewalk may have accounting, income tax and property tax implications.