Amongst other requirements, a home seeker may be allowed to erect a house on an agricultural plot, provided it has a road access (width of road must be 4.0 mts. minimum) or by securing a right of way. The right of way cannot be less than 12 feet (3.65 mts.) wide and must have a distance from a public access no more than 600 feet (183 m.) from a pubic road (no less than 4.0 mts. wide). If the land is situated however within “Topiko Shedio” area, then the right of way must be 4.0 mts. wide and maximum distance 100 mts. from a public road.

Getting a right of way is a right that a land locked plot of land has. An applicant can either approach the land owner over which a right of way is required (subservient land) and negotiate directly as to the route, compensation required by the affected owner etc. Once this is done, an application is made through the Lands Office indicating on a site plan the width/ route required and asking the Lands Office to registration the same on the applicant’s title if the affected owner agrees.

This is not always (rarely we add) possible however, since most owners of the subservient land object. So the applicant may submit an application to the Lands Office indicating one or more possible routes. The Lands Office will inspect the properties in the presence of the applicants/affected owners and decide which route is better, bearing in mind the shortest distance, the more convenient route, the least damage that the right of way will cause to the subservient land and the least cost to the applicant. The Lands Office decision must be duly reasoned and must also indicate the cost of acquisition (i.e. compensation to be paid to the subservient land owner). The subservient land owner can object on the Lands Office decision, both regarding the route as well as the compensation amount (the same objection can be submitted on behalf of the applicant). In the event of a termination by the Lands Office (final decision) each party can apply to the court, stating the reason of his objection. The court can adopt either position or order otherwise based on its own opinion.

So, it is a simple procedure but on the other had if you run into an objectionable subservient land owner it might take years to fully secure the right of way. A case that we are handling (as an expert witness) the case is running onto the 7th year and it is still going on. So if you are considering to buy land locked land, it is better if you make it a condition for the existing owner who sells the property to acquire the right of way first before buying. Usually the compensation is set at the land value, i.e. if the property has a land value of say €10/sq.m. and your right of way is (3.6 mts. x 100 m.ts. length) 360 mts., or an amount of €3600. One could agree that it should be ½ the price of the freehold price and in most cases it will be accepted by the court, since what one is acquiring is a right and not the absolute ownership. On the other hand, the subservient land owner might ask for added compensation regarding any damage that the right will cause, e.g. if there is a house on the subservient land and the right passes through its yard, he will require (injurious affection as it is known) added compensation, which relates to the loss of value of the house.

Bearing in mind also that unless you agree with the subservient land owner, you may not be allowed to make up the right over the subservient land.

To be noted that a right of way cannot be used by more than 4 houses. Also the town planning people might turn down an application if it does not consider it to be a “satisfactory” access i.e too steep, unstable ground etc etc (although the right of way may be so registered).

The Government is now out to restrict the uncontrolled development in the agricultural areas and from time to time adds all sorts of new conditions and law interpretations. We understand (noting not 100% certain at this point of time) that within agricultural areas (zoned as such) no more housing development will be allowed unless:

• The applicant is a local
• Has no other house
• The house will be used as his main residence
• The distance from the village is no more than 1-1½ kms away
• Etc etc

As a pre-emptive action we have written to the Minister of Interior reporting our objection to this since this drastic change of policy since this will leave exposed property owners, buyers, banks etc, since agricultural plots will have a “personal” value, relating to the capability of having a house built on it or not.

We understand that this new and unwritten policy has created a huge confusion to the market and the town planning people and we hope that the Government will have a re-think on the subject.

We will keep you informed.

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