Violating the right of access

The right of access is attached to the property granted and its violation constitutes trespass

The right of access granted through a neighbouring to an enclaved property is an easement registered with the land registry, as well as in the title deed of both the dominant and the servient property. In case of violation of the right of use, the civil offence of trespass and private nuisance is committed.

The right of access is considered a property right which is attached to the dominant property for the benefit of which it is registered and it is not an autonomous or independent right, nor a personal one since it is independent of the respective owner. It is linked to the ownership of the dominant property and constitutes a burden limiting the right of ownership of the servient property.

Actions on the part of the owner of the servient property which aim to obstruct access, even if they cease to be owner, are illegal. The remedy a court may grant, depending on the extent of the trespass, is an injunction to restore the right of passage to its previous condition.

Article 43(1) of the Civil Wrongs Law, Cap.148, defines trespass to immovable property as any unlawful entry upon, or any unlawful damage to or interference with, any such property. Usually, the illegal intervention and deprivation of the right of way comes from the owner of the servient property.

In a decision issued on July 13 the supreme court examined the appeal of a former owner of a servient property who claimed the court of first instance wrongly issued an injunction against him, as it was not examined to what extent, as a non-owner now, he had the right or consent of the present owners of the servient property, to carry out the necessary works.

The supreme court considered that the case law cited by the appellant did not support him. The court explained that the issuance of an injunction, which is a mandatory order, falls with the discretion of the trying court. An element that counted was that the opposing party acted without regard to the rights of the claimant neighbour, trying to gain an advantage over him. The costs of the offender to comply are taken into account, but this factor has no place where it appears that they acted deliberately. The court further pointed out that it has been decided that in the cases of mandatory orders, the impossibility of executing them is a defence, with the proviso, however, that the burden of proving the impossibility is on the person to whom the order is directed.

In the particular case, the supreme court said it remains undisputed that the appellant interfered with the neighbour’s right of passage. The order was clear and there was no reason not to comply, since no evidence was brought that demonstrated this or that compliance would involve illegal actions. The appellant was ordered to restore the topography and the passage as they were. The injunction was the inevitable result of his disregard for his neighbour’s rights.

The supreme court approved the trial court’s judgement that the claimant had proven trespass and obstruction of the use of the right of passage, that nominal damages be paid and the passage be restored within two months of the order being served. The supreme court accepted, however, that awarding costs on the scale of the action, given the award of damages and the order, was not justified, since the claimant did not prove specific damage and ordered their reduction to the lowest scale.

George Coucounis is a lawyer practising in Larnaca and the founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]