All land parcels in Montserrat must be accessible by a road or public pathway. Landlocked parcels are undesirable, unprofitable, and would not be approved as part of any proper land development. When the access to a land parcel is through land belonging to another person, the landowner who requires access would be using an easement or right of way over someone else’s land to access his land.
It is important to be aware of easements and rights of way as they give rise to access rights that must be recognized for the continued benefit of persons who rely on them. Subsequent landowners or successors in title must be aware of the legal rights and obligations arising from long-established easements. Conveyancers and land practitioners need to advise prospective landowners on the existence of easements, and the impact of easements on prospective purchasers’ use and investment in their properties.
Why would a landowner need to cross another person’s land to get to his own?
Perhaps at the time when the land in that area was being apportioned, there was an agreement or an understanding among the parties that the access through the land of another landowner was the most convenient or suitable access point. A written document or map may exist to confirm the agreement of the parties at the time, but usually, it is the established behavior over many years by persons in the area, that would be compelling proof of the existence of an easement. Successive owners and occupiers would be bound to continue to recognize the easement. In effect, established rights to access by an easement or right of way may be recognized and enforced in the High Court, so that persons may continue to have access or may prevent obstruction of the access. If no established right of access is proven, a Court may create an easement of necessity in order to prevent landlocked land parcels.
A right of way is a form of easement. An easement is a property right that gives a non-possessory person a right to use property owned by someone else. The right of way is an access over land. Another form of easement may be an easement of light, view, or air. A person entitled to an easement of light, view, or air is entitled to ensure that other landowner(s) do not build any structure or plant any hedge that would obstruct his view, light, or air. The other landowner would be obligated to ensure that no structure or hedge on his land causes an obstruction to the person entitled. A utility company may also have an easement over privately owned land, giving a right to use the land to run water mains, power lines or supply drains.
The person with the right to the easement does not own or occupy the property, but has the rights to use the property for the required access. For an easement to exist, there must be at least two adjoining parcels of land, regarded as the “servient estate” and the “dominant estate”, both owned by different parties. The servient estate is the land that must support the right of access, for example, the land that the right of way is located on. The dominant estate is supported by the servient estate because the dominant estate landowner is entitled to pass over the servient estate and use the easement/right of way. The dominant estate must benefit from the servient estate, and the rights of use by the dominant estate landowner are legally enforceable. This means, if he is blocked, or if a new owner refuses to recognize the right of access, the dominant estate landowner may enlist the High Court to uphold his right to access, and prevent an obstruction.
How rights of way are commonly created
Some easements are created when a landowner/seller sells a portion of his land, and retains the rest of the land for himself. In order to access the public road, the buyer of the portion, may have to cross over a portion of the seller’s land. Both seller and buyer would have had the understanding or agreement that without the necessary access over the seller’s land, the buyer would be landlocked and without access to the public access road. Without an express understanding between the buyer and seller, there would be an implication that the buyer would be allowed to access his land through the seller’s land.
The seller’s land will then become the servient estate, and the buyer’s the dominant estate. On a survey map, the dotted lines on the seller’s servient estate plot may indicate the direction and size of the right of way marked “r.o.w. 8’” for an eight (8) feet right of way. The buyer, or his successor in title, entitled to access over land not belonging to him, cannot be prevented from using, the access provided by the seller. The seller would be said to have “granted” the easement or right of way to the buyer, over his land.
In the event that the right of way is put on the land being sold, then the seller’s land would be the dominant tenement. The seller would not be burdened with the obligation to allow access. The seller would have transferred the land to the seller, with an express “reservation” to allow himself access over just the portion determined to be the right of way on the sold parcel, marked “r.o.w 8’”, for example. The buyer must beware that he is buying land that has a servient estate, and that he, not the seller, will have to provide access to the seller’s dominant estate.
It is important during the sale negotiations, and any proper review of the property, sale documents, maps, etc., that prospective land buyers are keen to inquire about the existence and implications of any easements on the property. Legal advice, and guidance from an experienced surveyor or conveyancer would be recommended as rights of way and easements generally give rise to legal rights and obligations and may also significantly impact one’s use of his land, and the value of the land, if the land is burdened with an easement.
Shelley Isles
Registrar of Lands
Persons seeking to conduct searches or gain copies of maps in relation to easements may inquire at the Lands and Survey Department via tel: 664-491-3620 or email surveys@gov.ms.
Registrar of Lands
