Acquiring a “right of way” where a property is enclaved

Author: N. Pirilides & Associates LLC
Date:2017-12-22

It is not an unusual phenomenon to own an immovable property in Cyprus which does not have direct access to the public highway or even a public road. The obvious question which arises for the owners of such property is “how can I get access to my property?” Section 11A of the Immovable Property (Tenure, Registration and Valuation) Law, Cap.224 provides for the way in which such owner can acquire a right of way.

Section 11A, Cap.224 – Acquiring a Right of Way

According to Section 11A (1), where a property is enclaved, i.e. surrounded completely by other properties, and is thus deprived of the necessary access to a public road or where the existing access is insufficient to properly use, develop or utilize the property, the owner may claim a right-of-way from adjoining properties upon payment of reasonable compensation. It should be noted that for the purposes of the present subsection 'access' includes the right of conducting water through channels or pipes or any other suitable mean and also, whether the property will be deemed insufficient for “proper use, development or utilization”, for the purposes of the present section, the Court takes into consideration the facts of each case independently.

According to Section 11A (3), the owner of the neighboring land has no obligation to provide access if the communication of the immovable property to the public road has ceased due to a voluntary act or omission of the acquiring party (the registered owner claiming access).

Procedure

The procedure to be followed for the implementation of Section 11A is determined by the Immovable Property (Granting of Access) Rules of 1967.  Rule 3 requires the acquiring party to serve a notice upon the servient tenant (owner of the property through which access is claimed) in order to inform him about the right the applicant intends to claim from his property and the reason for which such access is required.

Proper service of notice requires that Form N283 is properly completed, signed and accompanied by a survey plan. The Form needs to contain the specifics of the dominant tenement and of the servient tenement.
 
Rule 4 provides that the acquiring party must, within sixty days from the service of the notice, file an application on Form N284 for the acquisition of the right of way. It should be noted that once the sixty-day period has lapsed, the application shall not be accepted and the service of new notices is required.  The acquiring party requests from the Department of Lands & Surveys to set the direction of the access to the land, the extent of the right to use it and the compensation to be paid.

Where the Land Officer does not prove to be successful in his efforts for an amicable agreement, the position of the right of way, its extent with respect to the use of the property and the compensation to be paid, then the Director of the Department of Lands Office decides upon the matter in such a way as to minimize the damage, the nuisance or the suffering that may be caused.  It should however be emphasized that the access which is created remains part of the ownership of the original owner.

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