Granting of passage to an enclosed property
A large number of properties still remain enclosed since they do not adjoin a public road or lack necessary access. It is up to their owner to submit a relevant application to the competent district land office to secure access, so that they can proceed with use of their property and development.
In processing the application, the director of the Land Registry exercises the powers granted to them by the Immovable Property Law, Cap 224, article 11A and the relevant regulations which in this case are those concerning the provision of access, Regulations of 1967.
The owner of the enclosed property requires the owner of an adjacent property to grant access through it. The granting of a right of way through third-party property serves the public interest, since it allows the agricultural, residential, tourism and any other type of use of an enclosed property.
Local inquiry by the Land Registry
Before granting the right of way, a local inquiry is carried out by the competent Land Registry officer, in the presence of the interested parties, who have the right to express their views on the choice of the passage.
The property through which the access will pass is called the “servient” property and the enclosed property the “dominant” property. The passage that will ultimately be chosen must be the most appropriate and be as direct and easy to use as possible and cause the least possible damage, nuisance and inconvenience to the servient property.
Decision of the director
Therefore, the director’s decision, especially due to their expertise, should be the result of a thorough investigation in accordance with the law and regulations that takes into account the on-site situation, as well as evaluating all existing possible solutions in order to select the most appropriate and convenient passage.
On this basis, they determine the direction of the passage, the extent of the right to use of the acquiring party and the compensation to be paid by them and informs all affected people.
The director’s decision must be sufficiently reasoned so as not to create doubt about the reasons on which it is based. The director in these cases acts as an arbitrator and their function is quasi-judicial.
According to section 80 of Cap.224, any person who disagrees with the decision of the director may appeal against it within 30 days from the date on which the decision is communicated to them. The date of the mailing of the letter shall be deemed to be the date on which the decision is communicated to the person concerned.
The director shall not be added as a party to the appeal unless leave is granted by the court. It has been repeatedly recognised by the Supreme Court that the District Court has the power to review the decision of the director and the discretion to issue any decision it deems just.
Registration of right of way
After the relevant decision has been made and finalised, the chosen right of way is registered at the relevant land registry, as well as on the title deed of both properties. The right of way constitutes an easement according to the Immovable Property Law, Cap.224. By granting the right of way, the right of ownership of the dominant property is expanded and that of the servient property is limited.
Any disruption of the right of way constitutes the civil offence of illegal interference, as well as nuisance. Its restoration, as a matter of principle, is carried out by the District Court by issuing an injunction against the person causing the disturbance.
As regards the amount of compensation payable, the law refers to reasonable compensation. The relevant factors taken into account are the width of the passage, its location, the borders and, more generally, the impact it has on the development or value of the rest of the property. The right of way may be abolished if the purpose for its creation has ceased to exist.