Obligation to grant a passage

Obligation to grant a passage

by George Coucounis

“It is possible to acquire a passage if the land is enclosed or the existing passage is insufficient”

Article 11A of the Immovable Property Law, Cap.224, provides for two separate cases for the acquisition of a passage, either when a land is enclosed or when the existing passage is insufficient for its proper use, development and enjoyment. The owner of the land is entitled to demand a passage through the neighbouring land with payment of reasonable compensation. The acquiring party must notify the owner of the affected property together with a topographical plan and inform him of the intended acquisition of a passage through his land, providing complete details of his own property as well as the right to be acquired, stating the reasons for which the acquisition of the passage is necessary.

According to the relevant Regulations regarding the granting of a passage, “acquisition” regarding a passage means its acquisition and includes the extension or modification of an existing passage. “Dominant property” means the property for which a passage is required through an adjacent property. “Servient property” means the property through which a passage is required for the dominant property. “Interested party” includes the acquiring party, the servient party and any person who has an encumbrance registered on the servient property in the Land Registry records.

The direction of the passage and the extent of the right to use it, as well as the compensation to be paid are determined by the Director of the Land Registry, after prior notification to all interested parties and in case any of them omits to attend the local enquiry, the Director may proceed in his absence. It is noted that the obligation of the neighbours to grant a passage does not exist when the access of the property to the public road ceased by a voluntary act or omission of its owner. The passage that was granted is registered in the Land Registry records and it is considered as right, easement or benefit acquired under the Law, as well as it is registered on the title deed of both the dominant and the servient property.

In the event of the existence of another or other properties other than the servient property, which in the opinion of the Director are suitable for the creation of a passage through them, the required notice is served to their owners, too. The Director, after conducting a local enquiry and studying all the relevant information and facts, reaches a decision with the aim of causing the least possible damage, nuisance or inconvenience. He determines the direction of the passage, the extent of the right of the acquiring party and the amount payable as compensation and notifies his decision to all interested parties. The acquiring party may, after the lapse of 30 days, but before the lapse of 60 days from the notification of the decision, pay the compensation assessed to the Land Registry, unless an appeal has been filed by an interested party. If there is no appeal, the passage is registered in the Land Registry records and the amount of compensation is paid to the servient party or the beneficiary of an encumbrance if the servient property is encumbered.

When the existing passage is insufficient, the acquiring party must notify both the Director and the servient party of this in the notice and not state that the dominant property is enclosed, since his application will be rejected. The District Court of Limassol in a judgment issued on 24.1.2022 dealt with this issue in an appeal filed against the Director who had rejected the application for the acquisition of a right of passage, because the property of the appellant is not considered enclosed. Notwithstanding the expressed provision of Regulation 8, the appellant filed an appeal with the Court against the Director instead of the interested parties. Her obligation was to file the appeal against the interested parties and serve it to the Director. In the particular case, the interested parties were not joined as necessary parties, were deprived of the right to be heard and of natural justice and for this reason the Court dismissed the appeal as invalid.

The Court added for completeness that in the present case, the appellant stated in her application that the property was enclosed and therefore she requested a right of passage. The Director was not obliged to examine whether the appellant had satisfactory access through the registered right of passage as it was not what she applied for and his decision shouldn’t be annulled.