A matter of land | My friend has no access to her land
This week, guest presenter Timothy Thwaites, continues responding to questions from readers.
I have a friend who purchased a parcel of land, however, she has not yet received the title. She says access to her land requires her to pass through the property of the person who sold her the land, and that person is now denying her access to his property.
My questions to you are: is that allowed? What can my friend do to guarantee access to her own property by means of a roadway/ walkway? Is my friend trespassing?
It appears that your friend is dealing with a matter regarding the need for a 'right of way' over the vendor's (person who sold her) land to ensure that she has formal, permanent access to the land she has purchased.
A 'right of way' is a type of easement, which is defined, generally, as a right granted to one person/party to use the land of another person/party for a non-exclusive purpose. In this case, the right would be to pass over the land to access her property.
CRITERIA FOR EASEMENT
For an easement to be created the circumstance has to satisfy four criteria:
1) There must be separate holdings of land that can be described as a dominant and servient tenement. The dominant, being the land which will benefit from the easement (your friend's), and the servient, the land which will bear the burden of the easement (the vendor's).
2) The dominant and servient tenements should not be held by the same person, or a person must have separate types of interest in both tenements.
3) The easement must benefit the land itself, and not the owner.
4) The right being conferred by the easement must be able to be defined/described in the subject matter of a grant.
The owner of any parcel of land has the right to exclusive enjoyment, and therefore can exclude any other party; so in the most basic sense the vendor, who your friend bought the land from, is allowed to refuse her passage across their land.
What your friend needs to do is to move to formalise her interest in the land she has purchased, inclusive of securing an adequate access.
She would need to have the land surveyed by a commissioned land surveyor to prepare a boundary plan/diagram for the land. This diagram would have to indicate a means of access to the land, and in this case would do so by showing a right of way across the adjoining land held by the vendor.
She should also seek the assistance of an attorney to negotiate the details of the proposed easement with the vendor. Such details could include whether the access will be via roadway or walkway of a certain size, to define the specific rights and/or limitations of use to be granted, etc.
If the section of land that your friend has purchased has been a distinct holding from the vendor's land, and has enjoyed long and extended passage over the land as the sole means of access, the attorney may investigate if the circumstance satisfies the requirements to create the easement by prescription, under the Prescriptions Act.
Whatever the method of establishing the easement, the ultimate step is to bring the land under the operation of the Registration of Titles Act, where the easement would be formally endorsed on a certificate of title, establishing a legal interest in the vendor's land for the benefit of your friend's land.
I wish your friend the best in securing the access to and enjoyment of her land.
Please remind her that reaching an amicable agreement with the vendor is likely to bring about easier resolution to the matter. This will help not only with establishing the easement, but also to allow them to be peaceful neighbours.
Keep sending our questions and comments and let's continue to explore A Matter of Land. Until next time, traverse well.
- Timothy A. Thwaites, is a commissioned land surveyor based at Thwaites Surveying Ltd.