Actions aiming to reverse or abolish the right of access are considered to be illegal violating the right of possession of a property and the owner of the dominant property in favour of which the right of access works is protected on the basis of the civil offence of unlawful interference and nuisance. Similar protection is also enjoyed by the owner of the servient property in the event of any actions by the owner of the dominant property which prevent him from using the right of access.
The right of access is an easement recognised as immovable property, which may not be recognised as such in the law regarding civil offences, but a breach of the right of possession constitutes the civil offence of unlawful interference and nuisance.
The distinction between the two offences is only theoretical, since the remedies which the Court may grant, depending on the nature of the intervention, are the same, consisting of the issue of an order to restore the right of access to the state in which it was prior to the illegal interference.
The right of access which is registered both in the land registry and the title deed of the dominant and the servient property, is not an independent property right. Its granting is linked to the ownership of the dominant property which expands and it constitutes a burden limiting the right of ownership of the servient property.
The rights of the owner of the dominant and the servient property were examined by the Supreme Court in its judgement issued in C.A. 217/2017 dated 10.9.2018, stating that it is an interesting issue in the field of the rights surrounding immovable property, especially the right of access.
The case concerned an appeal against a first instance judgment whereby the Court issued orders against the owner of the dominant property to demolish the wall he had constructed on part of the servient property not covered by the right of access, as well as to demolish the wall constructed within the right of access up to a height of 30 cm from the asphalt surface of the passage access and to remove any obstacle preventing the use of the access by the owner of the servient property.
Referring to case law, the Supreme Court pointed out that the granting of a right of access is provided in the Immovable Property Law, Cap.242, article 11A and as far as its nature is concerned, it is not the object of independent ownership of a land. It held that the right of access, as an easement, by its very nature, does not deprive the owner from the possession of the servient land; also, it does not prevent a third person who, by virtue of a recognised and legitimate right, exercises such a possession or even exercises the right of free access thereof, after authorisation by the owner of the servient property, provided always that the exercise of the right of access existing for the benefit of the dominant property is not obstructed. Therefore, the construction of an entrance by the owner of the dominant property on part of the servient property covered by the right of access was unacceptable, not based on his right of access. Hence, the Court of first instance correctly issued a demolition order.
With regard to the order for the demolition of the wall up to 30 cm above the height of the asphalt surface, the Supreme Court repeated the case-law, stating that the construction of works following the granting of a right of access through the servient property to the benefit of the dominant property does not constitute trespass or unlawful interference and it is permissible to the extent that the right of access can be exercised with comfort and safety. However, the Court of first instance concluded that the access or its use by the owner of the servient property became impossible based on photographs that alone did not lead to safe conclusions in respect to the required height of the wall and they did not constitute solid and acceptable evidence. Therefore, for this particular issue, the Supreme Court ordered its re-trial by the Court of first instance.
The purpose of granting the right of access through the property of a third person is to provide access to an enclosed property for agricultural, residential or any other development. This right can only be abolished when the purpose of its granting ceases to exist, such as the construction of a road on the side of the dominant property, making the access redundant.
George Coucounis is a lawyer specialising in the Immovable Property Law, based in Larnaca, e-mail coucounis.law@cytanet.com.cy, www.coucounislaw.com Tel: 24818288.
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