Road frontage issues have no roundabout solutions | Daily News

Road frontage issues have no roundabout solutions

As is common practice these days, a landowner parceled her land into four separate plots and sold the four divided portions of the land to four separate buyers.

However, it turned out that one plot of the land she sold did not have any apparent access way because it was at the back of the lot that was subdivided for the aforementioned sale, and did not have any road frontage.

However, being undaunted by such inconvenience, the seller of the land had in the deed of sale cited a neighbouring piece of land as an access way to the main road passing the land she sold. She claimed that she had prescriptive rights to use this neighbour’s land as a servitude.

In layman’s terms prescriptive claims are rights that one acquires by long years of usage and the ‘servitude’ referred to, put in its simplest form, is the path of access over an adjacent plot that is used to gain entry to a land.

There had been no prior contest as regards the ownership of the allotment of land when the matter reviewed above came up in the Court of Appeal.

In the District Court before that, the main dispute that arose in the case now appealed (Godamune vs. Magilinnona Court of Appeal - SLR - 109, Vol 1 of 2009) was whether the plaintiff is entitled to use a neighbour’s land as a right of way to have access to the Lot No. 4 which was owned by the plaintiff after the subdivision and sale referred to above. The plaintiff maintained that the defendant is not allowing her the right of way that was marked as Lot No. 5 in the relevant deed. There was no dispute that the defendant was the owner of Lot No. 5.

The plaintiff’s lawyers referred to the judgement in Wilhelm vs. Norton which held that the land that does not adjoin a highway or neighbour’s road, i.e., a landlocked plot, is entitled to the necessary access to a highway.

 A certain Seelawathie Perera had transferred the right to use Lot No. 5 – the neighbouring land – in favour of the plaintiff. But Court held that she has no rights whatsoever to assign or transfer or otherwise alienate the right to use Lot No. 5 as she had done. The learned District Judge however had considered whether the plaintiff is entitled to a right of way of necessity “over and along Lot No. 5.”

This in layman’s terms means that even though there was no right of way by way of prescription, i.e., continued usage, that there still could be a right of way by ‘necessity’ meaning that basically that right of way is owed to the owner of Lot No. 4, because it has become necessary for her to use it to gain access to her land.

The District Court ruled that the plaintiff has such a right. The aggrieved defendant appealed, and when the matter came up in appeal the judges of the Court of Appeal cited the case of Nagalingam vs. Kathirasa Pillay where it was observed by Gratiaen J as follows: “The plaintiffs claim clearly cannot be sustained as Lot 4 originally formed part of a larger land which was admittedly served by the Northern lane. Upon the subdivision of the larger land, each person who received an allotment which would otherwise be landlocked-automatically became entitled under the Roman Dutch law to a right of way over the allotment or allotments adjoining the public lane.” (Massdorp-Edition 7th II pp 182-183).

This means in short that the land that has the road frontage has to serve as right of way to the land that does not have road frontage – after a subdivision of the original land.

Judges of the Court of Appeal further held: “According to Wilhelm vs. Norton when a piece of land is split into two or more portions, the back portion must retain its outlet over the front portion, even though nothing was said about it, because the splitting of the land cannot impose servitude upon the neighbours.”

It should be common sense almost that a right of way cannot be claimed over a neighbour’s land just because there is a subdivision of a larger land – when the plots that do not have road frontage as a result, become landlocked.

In this regard the judges cited His Lordship Wijetunga, J in the case of Costa vs Rowel:

“By reason of the said subdivision, the servitude could not be imposed upon the defendant who was only a neighbour. Even if the access to the UC Road would be less convenient from the point of view of the plaintiff, she would not be entitled to claim a right of way on the ground of necessity over the neighbour’s land when she has a legal right of access to the public highway over the intervening subdivisions of the larger land.”

In other words, you cannot claim a right of way by necessity over a neighbour’s land when you have a legal right to access the roadway over the other plots of land that have road frontage, which were part of the larger plot of land, before the land was subdivided.

In this regard, it is settled law that the owner of land may approach court for a declaration of rights, if a person who apparently has no rights asserts a servitude over the land or if the holder of a servitude acts in excess of his or her rights.

To cite the relevant aspect of Roman Dutch law in this regard: “If a person unlawfully claims a servitude over land or claims greater rights under the servitude than it actually comprises, the owner of land may bring action against him, known as actio negatoria, for a declaration that his land is free from the servitude claimed, or free from the excessive burdens as the case may be.” (Voet 8:5:5:).

The defendant-appellant vindicated this right in the Court of Appeal.