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.

Ways to end a marriage in Trinidad and Tobago

 Q: What are the legal grounds for an Annulment in Trinidad & Tobago? How are they different from the reasons for a divorce? How to proceed to obtain an Annulment?

A: There is no law that forces you to end your marriage in a certain way. You can end as partners or as adversaries, fighting in court or agreeing in court, breaking the bank or limiting your emotional and financial damage. And at any time, you can change your mind.

Dissolution is cooperative. It is the legal way of agreeing on all issues and moving on. It is completely private and in your control, but for the final judgment which is part of the public court record.

• Procedure:  First, a written separation agreement outlining mutual understanding on property, support, and parenting responsibilities. Second, a petition for dissolution, which is a request that the court legally end the marriage in accordance with your separation agreement. You may have to attend a hearing, but in most cases it is not necessary.

Divorce is the when the parties are not in agreement on one or more issues. A divorce requires "grounds for a divorce" (see post on divorce). Usually, if you file and your spouse does not respond within twenty-eight days of being served with formal legal notification, your divorce will generally be considered uncontested. The petitioner will then have to apply to the court for the divorce to proceed and a hearing for the decree nisi will be set. In general, divorce means that the partners have issues they have so far been unable to resolve. It does not necessarily mean that you will be antagonists. There are many other possibilities: 

• You may choose a collaborative divorce, where both parties and their attorneys sit down to resolve issues together, privately and outside the courtroom. You and your former spouse decide on support, property division, and parenting choices in an atmosphere respectful of everyone’s interests.
  For problems that resist a collaborative solution, there are different forms of negotiation, professional mediation or arbitration to resolve difficult issues without going to court. For many matters, the least desirable choice is litigation.

Legal separation is an action that results only in a formal decree of the rights and responsibilities of each spouse while they live apart. It does not dissolve the marriage. A separation agreement, adopted by order of the court, specifies division of debts, assets and parental rights and responsibilities– the same matters involved in a dissolution or divorce. Such a formal separation gives spouses time apart to consider their marriage while keeping in place various benefits that can end if the marriage ends. It also sets a pattern of agreements that are often followed for a divorce settlement, so it is wise to agree on terms that are acceptable in the long run. Some couples seek a planned separation as a more formalized way of working on marriage issues before they think seriously about divorce.

Annulment is a legal procedure for establishing that a marriage was never valid. The length of the marriage isn’t important. There are seven grounds for an annulment:

1. at least one party was underage; 
2. the parties have a close blood relationship; 
3. a party was still legally married at the time of the current marriage; 
4. one party was unable to consummate the marriage (the first instance of sexual intercourse after the wedding); 
5. one spouse lacked the mental capacity to enter into a marriage contract; 
6. one person married under duress or by force; 
7. one person entered into marriage fraudulently, concealing such things as criminal history, sexually transmitted diseases or impotence

All requests to end a marriage are done through the Family Courts. Information for them can be found in previous posts concerning family issues.

Emancipation of Minors

Q: My parents are abusive and I want to move out, but I am only 17. What can I do?


A: Emancipation is when a minor is given the legal authority of an adult. The minor is legally freed from control by his/her parents or guardians, and the parents or guardians are freed from any and all responsibility toward the child.

In Trinidad & Tobago, a 16 or 17 year old minor can be emancipated by:
a) Marriage. (Parental consent required)
b) Enlistment in the Armed Forces. (Parental consent required)
c) Court order. A court will order a minor emancipated only if the following requirements are met:

• Statutory age: The minor must at least be 16 years old
• Maturity level. A court must generally confirm that the child has enough adult-like maturity to be on his or her own.
• Financial independence. In general, children must prove they can support themselves in order to get emancipated. i.e., *NO* assistance from anyone, even in the form of a friend of family member saying "you can live here for free". This means that the minor must be able to pay the rent by him/herself.
• Notice to parents/guardians. A child's legal guardians must get an opportunity to respond to the emancipation request, and perhaps even oppose it.
  
  

Emancipation Benefits

• Capacity to consent. Once a minor is emancipated, he or she can enter into contracts and dictate his or her own health-care choices, among other adult responsibilities.