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.