30.05.2022
It is possible to purchase access if the land is fenced or the existing passage is insufficient.
Section 11A of the Real Estate Law, Chapter 224, provides for two separate cases of acquiring a passage, either when the land is fenced or when the existing passage is insufficient for its proper use, development and enjoyment.
The owner of the land to be accessed is entitled to demand passage through neighboring land with reasonable compensation. The acquirer must notify the owner of the affected property of the proposed acquisition and provide a topographical plan and details of its own property, as well as the right to acquire, indicating the reasons why the acquisition of the passage is necessary. This also applies to expanding or modifying an existing passage.
In the relevant regulations, “predominant property” means property that requires passage, and “servic property” means property that must be passed through. “Interested Party” refers to the acquirer, the serving party and any person who has an encumbrance on the property being served recorded in the land registry records.
The direction of travel and the scope 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 of all interested parties. If someone fails to appear at the local investigation, the director may continue the investigation in his absence.
It is noted that neighbors are not required to provide passage when access to property from a public road is blocked by the voluntary action or inaction of its owner.
The granted passage is documented in the land registry records and is considered a right under the law. It is also registered in the deed of ownership of both the dominant and subordinate property.
In the event of the presence of other or other property, except for official property, which, in the opinion of the director, is suitable for creating a passage through it, a corresponding notification is brought to the attention of its owners. The choice of the director is aimed at causing the least possible damage or inconvenience.
They determine the direction of passage, the scope of the right of the acquirer and the amount to be paid as compensation, and notify all interested parties of the decision. The acquirer may, after 30 days, but before the expiration of 60 days from the date of notification, pay compensation to the land registry, if the interested party has not filed an appeal. In the absence of an appeal, the passage is recorded and compensation is paid to the serving party or the beneficiary of the encumbrance if the service property is encumbered.
When the existing passage is not sufficient, the acquiring party must notify both the director and the service party in the notice and do not indicate that the dominant property is contracted or the application will be rejected.
In a judgment rendered on 24 January, the Limassol District Court considered the appeal filed against the director who denied the right-of-way application because the applicant’s property is not considered to be fenced. Despite the express provision of rule 8, the appellant filed an appeal in court against the director instead of the parties concerned. It was her duty to file an appeal against the interested parties and to refer it to the director. The interested parties were not united as necessary parties, were deprived of the right to be heard and natural justice, and for this reason the court dismissed the complaint as invalid.
The court added that the applicant stated that her property had been fenced off. The director was under no obligation to check whether the applicant had satisfactory access through the registered passage, since that was not what she had requested and therefore his decision should not be annulled.
George Coucunis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants
