Saturday, 11 May 2013

Rights of Way & Easements

Q: My partner bought a lot of land in Tobago; the vendors were supposed to complete the access road. After 18 months they had not, so we offered to do this as we were at a stalemate. The vendors agreed, but a person who owns land at the bottom of the hill leading to the land has refused to allow us to cross his land. apparently he had previously agreed. The deed shows the road reserve marked on it.
Is there anything we can do??? It seems we will never get our home and we cannot sell because of this dispute any way we liked the plot/location and wanted this to be our home.
A: If the location of your land resembles "B" in the above picture, you have to make an application to the court to grant an easement by necessity. Since you said the deed shows that the road has already been earmarked, it should be easy for you to get that order.

NB: The terms “easement” and “right-of-way” are often used interchangeably, but I don't agree. The difference between the two is that a right-of-way is passage only, while the easement is usage as well. The line can become blurred in many situations, but that is the basic difference.

A right of way is a right for someone to travel over another person’s private property. The right is “attached” to the property of the person who has the right, which means that if that person sells the property, the right of way automatically passes with the property to the purchaser. This is confirmed in section 16(1) of the Conveyancing and Law of Property Act 1939 - Chapter 56:01, as amended.

An easement is a permanent right authorizing a person or party to use land owned by another for a particular purpose. There are two types of easements:
  1.   Affirmative - gives the easement holder the right to do something on the grantor (owner) of the easement's land, such as travel on a road through the grantor's land 
  2.  Negative - allows the easement holder to prevent the grantor of the easement from doing something on his land that is lawful for him to do, such as building a structure that obscures light or a scenic view


Dominant and servient estate
As defined by Evershed MR in Re Ellenborough Park [1956], an easement requires the existence of at least two parties; the party gaining the benefit of the easement is the dominant estate (or dominant tenement), while the party granting the burden is the servient estate (or servient tenement).
For example, the owner of parcel A holds an easement to use a driveway on parcel B to gain access to A's house. Here, parcel A is the dominant estate, receiving the benefit, and parcel B is the servient estate, granting the benefit or suffering the burden.


Ways to create easements and rights-of-way
  • Expressly - "granted" or "reserved" in a deed or other legal instrument
  • Implied - not recorded or explicitly stated, but reflect the practices and customs of use for a property
  • Prescription – acquired by 20 years use without force, without secrecy and without the oral or written consent of the servient land owner
  • Necessity - if there was only one access road to a house, the law will not allow the road owner to deny the owner of the property access to their land, if that is the only access available. See picture below for example.




44 comments:

Anonymous said...

I assume that Rights of Way and Easement will also be applicable in terms of allowing the passage of drains - underground or above ground. I am considering buying a property on a hill but the main drain reserve is at the bottom of the hill with no drainage from my property to the main drain reserve. I would thus need to connect a drain from my property through another lot of the owner's property below in order to filter into the main drain reserve. Based on the above, it is clear that I would need to define and factor in an area for Right of Way for drains in the deed of conveyance. Would I also be able to use the area over the drain (if it is underground) as a footpath to the bottom of the hill? Do I need to indicate both uses (drainage and footpath) in deed or just one will do? Which applies in this case: right of way or easement?

Trinbago Rights said...

It would be wise to mention both and it will be a right of way because it concerns passage and usage.

Anonymous said...

Can some one still request ease of access even if they have an alternative route that is under developed?

Trinbago Rights said...

No, it must be the only way, unless of course, the other route is dangerous.

Anonymous said...

A parcel of land formerly had acess to it through a public acess road, but after subdivision of the lands, a parcel of land remained without any road acess.One of the present owners is trying to forcibly use our property to acess his property and he has obtained false declarations stating that he and others have been using the area to get to his property.We were not part of the original parcel of lands but are adjacent property.Should we provide the easement of necessity or others who were part of the original parcel of land.

Trinbago Rights said...

Only if that is the only way they can access their property.

DW said...

Q. Can easement be successfully applied for in this situation? The land in question is surrounded by other properties on three(3) sides and a stream on one. It is divided amongst several persons down the middle so that each beneficiary was alloted their parcel on either side of a road reserve as applied by the surveyor. However, the access to this road reserve which would serve ALL beneficiaries simultaneously is through someone elses land then over a stream. There is a dirt road that already leads down to the stream, just opposite the road reserve. It may be that each owner can reach his property through individual negotiation with several of the surrounding owners but that would require at least one bridge and numerous accesses rather than this one access.



Dion Phillip said...

There is a walk way on a property that my neighbor an I use we started to use the walk way As a drive way the owner of the property does not want any vehicle passing can she do that

marcus charles said...

Hello. My mother and I have been living on a parcel of land for over thirty five (35) years now and have been using an access road to get to our property. A contractor bought the house, next door to us which was leased to Mr. Tubal Uriah Buzz Butler back in the 60s to 70s. I stated, he bought the house because the land is state land. When we did a search, it returned with the land still being in Butler's name and attached is a will made out to his daughter. We also contacted Butler's daughter who is still alive and she confirmed that she only sold the house and never transfered the lease. The contractor is now claiming the road is part of his property and has blocked access , hampering a number of persons from getting to their homes. Does this contractor has the right to do this.

Trinbago Rights said...

Absolutely not!

I'm certain that this will end up in court.

marcus charles said...

The matter is in court. The magistrates court that is. After the last hearing the magistrate said this matter would have to go to the high court because their is very little he could do. The contractor is claiming that he has a deed. My question is how can he have a deed for state land since 1981 and it is not registered, because the search, has returned with the land being leased to Butler. The parcel of land that we are on we have a Certificate of Comfort for it which we got since 2000 and my mother got the OK to build there from land and survey long before. We even have a house number and was paying house tax to the borough corporation. These different departments used this same road to get to our house because it is the only access road to our property. One other thing the contractor placed a 40' container across the road. When the matter reaches high court what would be the process to get him to move it at least till the matter is settled.

jasmine Chin said...

My property is bordering 2 roadways (north and south), with the northern end of the property being the front of the property. Due to the narrow cut of the land house was built with the intention of using southern end as access to rear end of house (please note we are NOT passing through anyones property only Government roadway), as the final stages of construction of perimeter wall and gateway was being concluded, neighbors to the rear/southern end whom have their properties south east and south west of respective roadway threw debris, a load of gravel and placed plants to prevent access via vehicle to my private property. They said I can only access my property through a small walk in gateway not by car. I have been to The Arima Borough Corporation and the Town Superintendent has no problem with us building a drive through but the neighbors still have the obstructions in our way. What is my recourse of action. Please take note the roadway is not private road but a Government road being maintained by the Borough of Arima. Thank you in advance

marcus charles said...

One more question I would like to ask. When the matter reaches the high court, would the judge make him remove the container? Until the matter is complete. Seeing that the road is the only access, or do we have to file for an injunction or something? Thanks in advance.

Trinbago Rights said...

Most likely an injunction would have to be filed.

Do you have a Lawyer already?

Anonymous said...

Good morning
Can a private landowner group prevent me from entering my own property citing failure to pay maintenance fees one of which I was never bound by?

Trinbago Rights said...

You're asking me a question in abstract and I'll be stupid to respond without more information.

Anonymous said...

Can I take someone to court for blocking my access to my garage

Trinbago Rights said...

Long or short term blockage?

Anonymous said...

The owner of a six acre block of land occupied by tents (Renters) for the past 20 to 70 years, had this land surveyed so it can be divided into two parties. When they did the survey the showed roads and got the approval by the director of town and country/planning. The survey plan actually was done contary to what is existing. They drew roads passing through the tentants property and aslo a road reserve passing through a private property to access the public road. Can you advise what can be don to correct this?

Anonymous said...

what is my rights, when a neighbor has 'dropped' a load of gravel preventing me from accessing the public road from my property. The gravel in question was dumped by the neighbor in full view of all the workmen and myself and I was told that I must pay the man $100,000 for me to access the public roadway, mind you am not crossing anyone's property. My property has front access to a public road and rear access bordering the said public roadway. Help please

Trinbago Rights said...

You should move the gravel and then take him to Magistrate's court (would cost about $5) to recover your money.

Trinbago Rights said...

I'm not really seeing this as a legal issue. I think you should go back to T&C.

Anonymous said...

Good day, as mentioned with my problem with the gravel, I would like to know, in Trinidad is there any law preventing a citizen from accessing his property from both front and rear ends, bearing in mind the front is for a dead end road and the rear is also for another dead end road. My property being the only property with access to both roads but neighbors (not bounding my property) as declared 'war' if I access my property from my rear end via a driveway saying that is against the law. Mind you I have requested permission from Town and Country and the Local Government agencies both have declared they have no issue with me using the rear end for vehicular access. I currently have a walk through gate of which these said neighbors have no problem with but they insist that I must not gain access to my property with any vehicle from the rear end. Its a government roadway and not a gated community. Thank you in advance for your advice

Trinbago Rights said...

You have permission from T&C and Local Government, so why are you bothering with your neighbours?

Anonymous said...

Good Day Trinbago Rights,

Firstly, thank you for provided such rich information to the public.

I currently have an issue where I live. The situation is my family and I use a access road to gain entry to where I live. In the deed for the land, the agreement was for a 3 meters (10 feet) wide access road to gain entry. My family and I have been living there for the past 11 years. Now the persons renting to the front of us has built a drain on one side of the roadway and on the other side planted a steel post which narrowed the entry width to 8 feet. Also their housing structure is on the roadway. Now our 10 wheeler truck cannot enter the roadway and our vehicles barely can fit. Any advice now what can be done?

Trinbago Rights said...

There are two options here: mediation or High Court.

If it goes to court, you'll be filing for an injunction...

Anonymous said...

If a person is granted a right of way, can other adjoining lots gain access to that road way even if they do not need it out of necessity? for example if they already have a front gate and want a back gate coming out on someone else's private road?

Anonymous said...

Hello and good day Trinbago Rights

I currently have a problem,my father and i purchased a piece of property similar to the example given with the easement i have plot A but a roadway was given to us that we built and added drainage and so fort the second plot which is B was bought according to the size of property that was left after the road was given i am now in the position after maintaining this road way for 25 years the owner who has never built anything on the property now sends sewage trucks to park on the property and they are destroying the road not to mention a neighbour next to plot B has started storing junk like old cars and parts old house parts and has the place in a real state can you please tell me or advise me about what can be done and the road is named after my father and is still private,thanks for your help.

Anonymous said...

I am interested in purchasing a parcel of land that has a road reserve that connects to a main road. Do I still need to obtain approval for access to the main road and who is responsible for the construction of the road?

K&K said...

Good day and happy new year to you and to all the readers of this blog!
On our land there is an acces path to the neighbour's place. Since we want to secure our property by building a surrounding wall, we offered him to build steps on the edge of his land in order to provide another acces. In case he declines our offer, does trinidad&tobago law still alow us to close the path? In advance we thank you for your answer!

Trinbago Rights said...

What type of access? How long has it been in use? I'm guessing your neighbours don't agree? Is there another access for them?

K&K said...

Good day again! The only access now is 3ft narrow path to their property leading over our yard, passing right in front of our house entrance. In old times that has always been in use but over the last twenty years nobody has been living on neighbour's land (there was some relative taking care of the house occasionally). Now somebody returned from foreign and wants to fix up the place and live there. We have been planning to build the surrounding walls for some time now for safety reasons, so when the new neighbour appeared we simply offered to build steps for them to access their land directly from the main road without crossing our land. The neighbour is avoiding to give us an answer to our offer so we are thinking that he probably doesn't agree with our solution. The only other possible access to their land could be over the government land on the other side of their lot, but the terrain there is quite steep.

Vernella Jack Joseph said...

Good day to you,
What is the procedure for applying for easement?
The only reasonable entrance to our proprty is currentky blocked by the neighbors makeshift gate as they say that it is their property. What can i do?

Trinbago Rights said...

Get a Lawyer.

Nakia St.Hiliare said...

Currently we do not have drainage in our property, the cadastral drawings show a space which we assume was for the drain but it was not "labelled" as such. the neighbours don't want us cutting into their land. what can I do ?

vijay samaroo said...

hi can you please tell me if it is legal for a land owner to block up a main drain from my property that has been there for at least.30 yrs hence causing flooding presently to my property every time it rains or we use water and it also causes my toilet to backup which has to be cleaned on a regular basis .the owner does not even live in this country and has a rental property there thanks

AA said...

Hi Good Day. I'd like to ask some advise. We currently have a Neighbour who's parcel of land is adjacent to ours. Both of our parcels have direct access to the main road. He has, however, wired his compound in and chosen to build his access gate onto a private roadway we maintain. He has since been using our access for over 16 years BUT have then built a second gate further in. We've tried multiple times over the years to speak to him about removing his gate and putting it to the front of his land where he can access to road. When we try to speak with him he simply pretends we're not there or runs into his house. Now this is actually my mothers Brother and it was her property before she sold it to me. Although she was aware of what he was trying to do, she was emotional about how he had stopped speaking with the family ~18 years ago and she never documented her attempts or decided to take strong opposition. Now that I live here and he continues to refuse to have any discussion or even say good day, I'd like to know what action I can take to get him to put his access on the road. Currently he is creating a security risk for me and my newly started family as he refuses to alert us or close back our gates

Someone said...

I live in San Juan area and cars keeps parking and sometimes for days in front of my gate entrance. Not my car park but d gate entrance and having their vehicle night over for days without moving. Is this possible? Do they have d right to do this?

CA said...

Good day,
I would like to know what to do in the following situations:
There is a road reserve which has not been "handed over" to the regional corporation. My only access to my property is via this road, which has been hindered multiple times by the neighbor. The latest hindrance is a ditch dug across the roadway (dug at the starting point from my property and after his property, thus access to his property is not affected) and the responsible person has refused to fill it. What can I do to regain my access and prevent further situations like this?

Secondly, leading from the first, the reasoning for the ditch, as stated by this person, is to divert the water away from his property because "his material was washing away". Please note this person does not have a drain at all in front his property for me to connect a drain. What can I do about this drainage situation?

Any guidance will be appreciated.

Randy said...

A supermarket owner built a warehouse directly on the road edge and constructed a concrete base on the roadway to operate a forklift to lift loads to the first floor opposite my house entrance.Heavy goods vehicles also use the area to offload goods daily and these have often reach toppling stages on ocassions and once had fell in my yard damaging my garage.The roadside drain was blocked causing water to flow in my building. The corporation has visited and done nothing. Is it that the corporation has failed to serve notice to the building owner. Approval was also given to operate a noisy forklift although there is no pedestrian walk or barricade on this steep hilly road.It's like some public servant has ab sconded their duties.What can I do to have this addressed ?

Anonymous said...

i would like to know what the law is on how much feet away from my neighbours wall ,can I construct my shed

Trinbago Rights said...

Contact Town & Country.

Nich said...

Hi. If you live in a back lot that have been divided among everyone but the persons in the front lots build their houses where u no longer have proper access to back property but have a little track that if you use a big umbrella to walk down it bounces on the wall of one of the house and the other has a step on the other side. Both have driveways infront and you have to park your vehicle on the road because you cannot pass through the little walkway to park on your property. Is there anyway or laws to get poroper access to the backlot? So we wont be the only ones parking on the road which is kind of unsafe

Trinbago Rights said...

Legal action is the only option.