- Posted by Rudolph van den Berg in News on Property
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Sometimes property owners are unable to reach their own land from a public road without driving over the land of another person or the route to the land in question from a public road is so difficult and treacherous that it is almost impassable. This is what is meant by the term ‘landlocked’.
There is relief offered for owners of landlocked portions of land to acquire the rights to traverse the land of another, in order to reach their own. This is particularly important in relation to farmland, where it has been developed and subdivided over time and certain portions become landlocked because the necessary servitudes were not registered as and when they should have been.
Rights to traverse others’ land
Landlocked owners will have the right to drive over someone else’s land to reach their own land and this right could come about in one of four different ways:
- The landlocked owner might have acquired a right to traverse another’s land in order to reach the landlocked property when he purchased the landlocked land. This right would most commonly have been registered as a servitude in favour of the landlocked land;
- The landlocked owner might have negotiated with the surrounding land owners in order to arrange for a right of way servitude to be registered over someone else’s land, allowing the landlocked owner to reach his or her property from a public road (and this right would most commonly have been registered as a servitude in favour of the landlocked land);
- The landlocked owner might have acquired a servitutal right of way over another’s land by way of acquisitive prescription; or
- In the situation where the landlocked owner does not have any servitutal right to traverse another’s land to reach his own, he will have a right in terms of the common law to do so (known as a ‘right of way of necessity’) which arises automatically, by operation of law, when certain factual situations exist.
Servitudes by agreement
Affected parties can agree to register a servitude giving the landlocked land (and/or its owners) the right to traverse the ‘servient’ land (the land affected or burdened by the right of way servitude).
Prescription of servitudes
It is possible for a person to acquire a right of way servitude over someone else’s land through acquisitive prescription, which is a legal process in terms of which an owner that uses someone else’s land openly as if he was the owner thereof for a period of 30 years or more. Once the landlocked owner has acquired such a right, he can force the owner of the affected land to recognise the servitude by approaching a court for an order authorising the registration of the servitude against the title deeds of the affected properties.
Right of way of necessity
Where a landlocked owner does not or cannot acquire a right of way over another’s land by agreement or prescription, he will automatically have a ‘right of way of necessity’ over another’s land in terms of common law. This arises by operation of law and the owner of the affected land does not need to consent.
His right to traverse his neighbour’s land to reach his own is limited to the shortest route between the landlocked property and the nearest public road, and the route that causes the least damage or inconvenience to the land. A landlocked owner cannot, demand the right to drive over a portion of his neighbour’s property in a manner that will negatively affect on the neighbour. The route that the landlocked owner must take is often the subject of dispute between the parties and there are several reported cases dealing with the principles that have evolved in our common law to determine where the shortest and least damaging route lies.
Once the right of way of necessity comes into existence, however, it can be registered against the title deeds of the affected property in the Deeds Office.
All servitudes must be used reasonably. This requirement protects the owner of the land burdened by the servitude, to ensure that he is not unreasonably affected by the manner in which the servitude holder exercises his right in terms of that servitude. If a servitude holder is acting unreasonably and abusing the use of the servitude, the affected landowner can apply to court for relief.
A right of way of necessity will operate over any land including state owned land.