It is possible to acquire a passage if land is enclosed or existing passage is insufficient
Article 11A of the Immovable Property Law, Cap.224, provides for two separate cases for the acquisition of a passage, either when land is enclosed or when the existing passage is insufficient for its proper use, development and enjoyment.
The owner of land that needs to be accessed is entitled to demand a passage through neighbouring land with payment of reasonable compensation. The acquiring party must notify the owner of the affected property of the intended acquisition and provide a topographical plan and details of their own property as well as the right to be acquired, stating the reasons the acquisition of the passage is necessary. This applies to extension or modification of an existing passage as well.
In relevant regulations, “dominant property” means the property for which a passage is required and “servient property” means the property through which the passage must go. “Interested party” refers to an acquiring party, a servient party and any person who has an encumbrance registered on the servient property in the land registry records.
The direction of the passage and the extent of the right to use it, as well as the compensation to be paid are determined by the director of the land registry, after prior notification to all interested parties. If anyone omits to attend the local enquiry, the director may proceed in their absence.
It is noted that neighbours have no obligation to grant a passage when the access to a property from a public road is blocked by a voluntary act or omission of its owner.
A passage granted is documented in land registry records and considered a right under law. It is also registered on the title deed of both the dominant and the servient property.
In the event of the existence of another or other properties other than the servient property, which in the opinion of the director are suitable for the creation of a passage through them, the required notice is served to their owners too. The director’s choice aims to cause the least possible damage or inconvenience.
They determine the direction of the passage, the extent of the right of the acquiring party and the amount payable as compensation and notifies all interested parties of the decision. The acquiring party may, after 30 days, but before 60 days pass from the notification, pay the compensation to the land registry, unless an appeal has been filed by an interested party. If there is no appeal, the passage is registered in and the compensation paid to the servient party or the beneficiary of an encumbrance if the servient property is encumbered.
When existing passage is insufficient, an acquiring party must notify both the director and the servient party of this in the notice and not state that the dominant property is enclosed, or the application will be rejected.
In a judgment issued on January 24, the District Court of Limassol dealt with an appeal filed against the director who had rejected an application for the acquisition of a right of passage, because the property of the appellant is not considered enclosed. Notwithstanding the expressed provision of Regulation 8, the appellant filed an appeal with the court against the director instead of the interested parties. Her obligation was to file the appeal against the interested parties and serve it to the director. The interested parties were not joined as necessary parties, were deprived of the right to be heard and of natural justice and for this reason the court dismissed the appeal as invalid.
The court added that the appellant stated that her property was enclosed. The director was not obliged to examine whether the appellant had satisfactory access through the registered passage as it was not what she applied for and so his decision shouldn’t be annulled.
George Coucounis is a lawyer practising in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, inf[email protected]