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LEGAL CHAT

Landlocked property: easement gives the way

R.L. NARAYANAN

A landlocked property has no legal means of access, but there is a saving factor.



Legally yours: There are many ways to get legal access to a landlocked property.

Many people purchase a property on the basis that it is coming up for a good price. Often, the purchase is made without any professional consultation. At times, even the location of the property is not ascertained. Even if the title is clear, a situation could arise that the property may be landlocked.

You have to understand what is meant by a landlocked property. A landlocked property has no legal means of access. It may be bounded on all the four sides by properties owned by others. It could be bounded on one or more sides by water or terrain which does not permit access to the property. Imagine landing on a property by a helicopter or reaching one by a boat. For properties of these types, easements may be a saving factor.

A right of way is recognised as a positive easement. That is, a right vested in the owner of a property to make use of another person’s property. It is usually evidenced by a deed or a document; but for the easement, the actions of the user would be unlawful.

There is a difference between easement and licence. An easement cannot be extinguished or terminated at the will of the grantor. Most of the licences can be unilaterally terminated or revoked by the person who has given them. Easement is related to a property; licence is personal to the person concerned.

Let us assume that you have purchased a property from another person. It is inaccessible, except by passing over the land of your seller or another owner. You will be entitled to pass over the land of your seller and have a right of way limited to the purpose of use of the property. Alternatively, let us assume that you have sold an item of your property to a person.

The only access to your property is through the property that you have sold. You will have a right of way limited to the use of the property retained by you. This example will apply for leases as well.

The right of way as may arise in the above situation has to be provided in a reasonable manner by the person over whose property the right arises. If the person does not provide the same, the person who is not having the access may set it out and also enforce the right in a court of law.

If you have been able to use any access or right of way for a continuous period of 20 years, without interruption, then you acquire a right to continued usage of the same. This has to be a right which is openly enjoyed by the person claiming the right. In such a case, it will become anabsolute right. If the property belongs to the Government, then the period is reckoned as 30 years.

There is a particular method of computation of the said period. Also, the existence of an agreement or otherwise may alter the position. Whether there is an interruption or not will be a question of fact, as well as interpretation of certain provisions.

Alternate access

There are certain rights which may flow from the right of way. For example, you may have a right of way over another person’s land. If an obstruction has to be removed, this can be done by you by entering the land for removing the same. Similarly, you may have the right of way through another person’s land. Such a person makes an obstruction or undertakes some action where you are unable to use the right of way.

In such a case, you have the right to deviate from the way which is obstructed and use the land of the person obstructing to reach your property. This alternate access must be reasonable. Let us assume that you had a property in which you had a right of way over another person’s property. Subsequently, you had acquired another property from which there is access to your property. In such an event, your right of way over the other person’s property will cease to exist.

Generally, expenses relating to preservation and protection of the right of way are those of the person claiming the same as an easement.

In using the right of way, if any damage is caused to the property of the person owning the property on which the right of way subsists, then such person is entitled to be compensated.

The person whose land is used as a right of way is not required to undertake any action to provide you the enjoyment of easement. However, such a person cannot restrict your right or make the exercise of easement less convenient.

A right of way of one kind will not include a right of way of another. For example, if you have been provided a right of way of a footpath, this cannot be used for having access through vehicles.

If you enter into a partition or other transaction relating to the property for which you have a right of way, this will not increase the burden on the other owner. However, the co-owner will normally have a share in the existing right of way.

These rights also cannot be normally disturbed. If disturbed, the person claiming the easement can claim compensation in case of substantial damage. Other reliefs such as injunction can also be granted.

Important factor

A right of way can also be lost. It can be extinguished or terminated. This can happen by various means like non-use, abandonment, destruction of one of the properties, natural causes, lack of necessity, acquisition, and dealing with property.

One has to consider several circumstances while buying or even selling a property. Access is one of the most important factors. Examples discussed above are only to provide an idea of how access and use of such access will have an impact on a property.

If you do not have any dealings or arrangements with the adjacent property owners, a right of way cannot be normally enforced on them. Then the options would be limited to negotiate and obtain a right of way. Even in such cases, proper documentation has to be made.

It will be good to consider all aspects of purchase or sale of a property including the existence of easements and availability of access, particularly for the use intended of the property. A clear title, by itself, may not be useful, if other factors are not taken into account. Hence, check out all the facts before making the critical decision of buying or selling a property.

The author is partner, RANK Associates, Advocates, Chennai.

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