22.08.2022
A right of access granted through a neighboring property in an enclave is an easement registered in the land registry as well as in the deed of title to both the dominant property and the service property. In case of violation of the right to use, a civil offense is committed in the form of an encroachment on the possession of property and causing harm to it.
The right of access is considered to be a property right attached to the dominant property in whose favor it is registered and is not an autonomous or independent right or a personal right, since it does not depend on the respective owner. It is associated with the possession of dominant property and is a burden that limits the ownership of official property.
The actions of the owner of official property aimed at preventing access, even if he ceases to be the owner, are illegal. The remedy that the court may grant, depending on the extent of the infringement, is an injunction to restore the right of passage to its previous state.
Section 43(1) of the Torts Act, Chapter 148, defines trespass on real property as any unlawful entry, any unlawful damage to, or interference with, any such property. Usually illegal interference and deprivation of passage comes from the owner of official property.
In a judgment dated July 13, the Supreme Court considered the appeal of the former owner of the service property, who argued that the trial court erroneously granted an injunction against him, because it was not considered to what extent, as a non-owner at present , he had the right or consent current owners of official property to carry out the necessary work.
The Supreme Court considered that the case law relied upon by the applicant did not support him. The Court explained that the issuance of an injunction, which is a binding order, is left to the discretion of the court hearing the case. It took into account the element that the opposing party acted without regard to the rights of the claimant neighbor, trying to gain an advantage over him. Compliance costs to the offender are taken into account, but this factor does not occur where it appears to have acted intentionally. The court further indicated that it was decided that in cases with binding orders, the impossibility of their execution is an objection, however, with the proviso that the burden of proving the impossibility lies with the person to whom the order is addressed.
In the specific case, the Supreme Court stated that it remained undisputed that the appellant had interfered with the neighbor’s right of way. The order was clear and there was no reason not to carry it out, as there was no evidence that any given execution would entail illegal acts. The applicant was ordered to restore the topography and passageway to their original state. The injunction was the inevitable result of his disregard for his neighbor’s rights.
The Supreme Court upheld the trial court’s decision that the plaintiff had proven trespass and obstruction of the right of passage, that nominal damages must be paid and passage restored within two months of service of the order. The Supreme Court, however, held that the award of legal costs at the level of the claim, taking into account the award of damages and the ruling, was unreasonable, since the plaintiff did not prove specific damages and ordered them to be reduced to the smallest amount.
George Coucounis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants, info@coucounis.law
