A reader who owns a property which is subject to a right-of-way servitude wants to know if he is allowed to have use of that driveway.
It allows his neighbour to reach an otherwise inaccessible property, accessed by a remote gate that is on the street. The gate is controlled by the reader’s neighbour.
The driveway is typically used only by the neighbour and the reader does not share a portion of the driveway to access his own property.
See the reader’s question here.
The reader says he understands that the servitude allows his neighbour right of way and that he is not permitted to restrict access. But he argues that the access road is still on his property and he surely has some right to it.
In particular, he feels his neighbour should not be entitled to restrict his use of the land and that he, too, should have full access and use of the driveway.
He argues that the remote gate should be moved from the border of his property to that of his neighbour’s, thus allowing the reader unencumbered use of the driveway.
The reader should determine the extent and terms of the right of way.
A servitude is usually registered against the title deed of the property and it should thus be fairly easy to access a copy if he does not already have one.
It is, however, likely that the right of way is drafted in plain terms, merely allowing the owner of the dominant land (the land requiring the right of way) access over a demarcated portion of the servient land (the land over which the servitude exists).
In the 2012 judgment of Johl v Nobre the owner of the dominant land erected various forms of access control and security over a portion of land that was subject to a simply worded right of way.
The owner of the servient land sought to use this access point and road.
But he was refused on the basis that allowing such access would compromise the security of the driveway and thus the owner of the dominant land’s home and family.
Of particular relevance to the reader is the court’s clarification on the legal position, stating that both the dominant and servient owners are entitled to use the servitude area.
The owner of the servient property retains all the rights flowing from his or her ownership, provided that the exercise of such rights do not interfere with the rights of the servitude holder.
The court also emphasised that such a servitude must be exercised in a reasonable manner, despite the rights of the dominant land taking precedence over those of the servient land.
While the servitude may be enjoyed, the holder of the servitude may not increase the burden on the servient property beyond the express or implied terms of the servitude.
The owner of the servient land should thus be able to continue to use the land in a normal manner, subject only to those rights specifically granted to the dominant land.
The court’s finding was that the ordinary grammatical meaning of the words of the servitude in the title deed, namely “a servitude of right of way”, is clear.
It entitles the dominant owner to a right of way across the property of the servient owner – no more, no less.
There are no other entitlements relevant to the servitude, either express or implied.
Nor are there any regulations as to how the right of way is to be exercised and none imposed upon the servient owner.
In light of this judgment, it would appear that the reader should be entitled to the access he seeks, subject to the specific provisions of the right of way.
As the reader’s request does not appear unreasonable, the parties should seek to resolve any dispute that may exist between them.
Failing that, he may have to resort to litigation to enforce his rights.
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