Existing access for the benefit of a neighbouring property should be taken into account

 

Some properties are enclosed and lack the necessary right-of-way to a public road, or have insufficient right-of-way for the proper use, development or enjoyment of the property. In these cases, the owner is entitled to demand access through neighbouring property upon payment of reasonable compensation.

The direction of the access and the extent of the right to use it, as well as the compensation that should be paid, are determined by the land registry director, after notification of all interested parties.

The provision of article 11A of the Immovable Property Law, Cap. 224, states that if any of the interested parties fails to attend the on-site inquiry, the director may proceed with any required action in their absence. The right-of-way granted is registered in the books of the land registry, as well as in the title deed of both the dominant and the servient property.

The director’s decision on the passage and the compensation payable, may be appealed within 30 days from the date of notification of the decision.

In the event that there is a right-of-way for the benefit of a neighbouring property, this should be taken into account when examining the application to grant access and sufficient justification must be provided for not using the already existing right-of-way.

The decision of the District Court of Paphos, in Appeal No. 57/2020, dated July 27, is very informative on the matter. It examined the appeal of plot owners who requested the annulment of the director of the land registry’s decision to grant a forced passage through their property.

The court held that the property owner who requests passage should prove to the director that: (a) their property is surrounded by other properties and has no or insufficient access from a public road, a finding that is objective, (b) the property’s isolation is not due to their own actions, (c) it is necessary to provide a passage to have access to the public road, to serve the normal enjoyment of the property, according to its purpose, (d) the passage requested is to provide access to a public road, and (e) the owner of the property requesting the right-of-way is willing to pay appropriate compensation, the payment of which is a condition of the effective right-of-way.

The court added that the director, when determining the right of way, has a wide discretion which they must exercise in a reasonable and fair manner. At this stage, in the event that the necessary passage cannot pass through only one property, with more adjacent properties burdened, certain criteria are used for the choice, based on the principle of proportionality, such as which is the most suitable option for serving the enclosed property, taking into account the area, length of the path, functionality, cost and which path imposes the least burden.

It also stated that, where an application is made for a mandatory right-of-way for a plot considered to be enclosed, but there is already a designated right-of-way for the benefit of an adjacent plot, this factor should be taken into account, and a clear justification must be given for the non-possibility of using the already existing passage.

In this case, the court considered that it did not have clear data from the land registry, comparing the use of existing access to the option of granting new access along the boundary of the affected plots, because the director failed to consider the alternative option.

Since the possibility of using the already existing access for the benefit of a neighbouring and adjoining plot was not considered, the court deemed the investigation to be incomplete. It issued an order cancelling the decision of the director by which the access was determined for the benefit of the dominant plot with encumbrance of the servient plot and other property. It also ordered the review by the director of the owner’s application for access, with notification to the owners of the neighbouring plots as interested parties.

 

George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, e-mail [email protected], www.coucounislaw.com, tel: 24818288