Blocked access road reopened through a right of passage

Background

Our client had lived for more than 20 years in a house built on landlocked land, meaning land with no direct access to a public road. At first he drove in and out along a farm road on the neighboring land, but that road disappeared when a company bought the land and built a factory. From then on the client used part of the company's land as his access route, until the company recently fenced the boundary and placed a container and a barrier on the route, blocking access. The client sued to confirm his right of way, have the obstacles removed, and stop any interference.

The issue

A right of way over surrounding land is a Civil Act right allowing the owner of land without road access to cross neighboring land to reach a public road. The company argued that there was another detour, that the client had once signed a written undertaking amounting to a waiver of that right, and that the nature of its factory required keeping outsiders out. The issues were whether the client had a right of way over this route and whether the company's objections held up.

Our approach

We argued on the client's behalf that his land was landlocked with no connection to a public road, and that after the farm road disappeared he had no choice but to use this route. Along with removal of the container and barrier and an order against interference, we sought indirect compulsion, a daily monetary penalty if the company violated the judgment.

The court's reasoning

Relying on an on-site inspection and a survey appraisal, among other evidence, the court found there was no necessary passage between the client's land and the public road. Because the company itself used the same strip as a vehicle route, the client's use would not seriously harm the company's interests. The detour the company pointed to was a narrow footpath, partly gouged out and hazardous, which could not count as the access needed to come and go from a home and lead a daily life. The earlier written undertaking had been given to the previous landowner, so it was hard to treat as a waiver and did not bind the company as the new owner; and since recognizing the right did not open the route to anyone at all, it was hard to see any harm to the factory's operations.

Outcome

The court confirmed the client's right of way over that strip and ordered the company to remove the container and barrier and not to obstruct passage. The removal order was made provisionally enforceable, so it can be carried out before the judgment becomes final. However, the court declined indirect compulsion, finding it unlikely that the company would immediately violate the judgment and noting that the client could apply for it separately later if needed; costs were split 20% to the client and 80% to the company.

What this case means

Even land without road access can carry a right to cross neighboring land, and that right extends beyond a bare footpath to what is needed to come and go from a home and live day to day. Any written undertaking signed in the past may or may not be effective depending on its content and who it was given to.

This is the outcome of an individual case and does not guarantee the same result in similar matters. Some facts have been generalized to protect the parties involved.