10 December, 2007


Rights of Way. A professional friend of mine commented to me yesterday, “Don, I do not know what the fuss is all about. I am interested in buying a piece of land. The map shows a right of way. Surely, I do not need more than that?”

I can excuse my friend. He is not a lawyer. It is not even every lawyer who has studied conveyancing law. That is the law governing the creation of and dealing in interests in land. Lawyers have been known to make serious mistakes when advising on land matters. So, what is a road or right of way in Anguilla?

A road, properly speaking, means a ‘public road”. This is to distinguish it from a “private right of way”. A public road is governed by the Roads Act, chapter R 65 of the Revised Statutes of Anguilla. So, for example, section 17 declares that every road is to be at least 32 feet wide, with a discretion to the Chief Engineer to make it narrower. That is a public road. By contrast, there is no minimum width for a private road. Indeed private roads are not dealt with by the Roads Act, only public roads. A public road is created in only three ways. One is by ancient use, the other is by grant, and the final one is if I invite government to spend public money on repairing a private road over my land. That is, a public right of way comes into existence only by the public having exercised such a right for a very long period, or if I give or sell the government a public right of way over my land. At common law a public road might exist without the land under it being owned by the government. In Anguilla, the law has been set up so that the government owns the land over which a public road exists.

Private roads are registered in Anguilla as a “right of way”. A right of way over my land is a right. It is not land. When I give or sell you a right of way over my land, you and your guests have a right to use that roadway to access your land. No one else may use that roadway without my permission. It is a private right of way, meaning private to you and me. The public have no right to use it. I can block them off, or sue them for trespass. Private roads or rights of way are registered as easements in the Land Registry under the provisions of section 93 of the Registered Land Act, chapter R 30. Every easement must have a “dominant tenement” and a “subservient tenement”. That is the land that enjoys the right, and the land over which the right is an encumbrance. So, on your Land Register you will find in the “Proprietorship Section” a note that you and I have registered a right of way over my land for the benefit of your land. That means that the road I gave you over my land is not private to you. It belongs to whoever owns your land in the future. The easement belongs to the land, not to the owner of the land. On my Land Register, we will find that there is a note in the “Encumbrance Section” that there is a right of way in your favour over my land. The Registered Land Act requires every interest in land to be registered. If an alleged easement is not registered, then it does not exist. There will be a survey or plan in the Land Registry showing exactly where the right of way over my land is. You cannot just walk or drive over my land anywhere you want. You must follow the exact roadway that I gave you.

Two things should be emphasized. You have the right of way. The burden of maintaining it, or surfacing it, rests with you. If you want to put down marl to make a smooth drive, the cost is yours, not mine. I give you the right to pass. I do not guarantee you a smooth passage! Secondly, you own the right, I own the land. You have no interest in the land other than the right to pass and re-pass in the manner we have agreed. We might have limited the right of way, for example, to passage by walking. That would mean that you have no right to bring a vehicle over my land.

Private rights of way are depicted in the Land Registry by two broken parallel lines. The letters “ROW” indicate that it is a right of way. Next to these letters you will see some numbers between brackets, eg, “20”. This indicates the width in feet of the right of way. So, if you are looking at a piece of land with a view to purchasing it, you look at the Block Map. If it shows a registered private right of way running alongside the land, you ask to see a copy of the Land Register for the parcel you are interested in. You look to the Proprietorship Section. If there is no right of way entered you know immediately that the right of way is not yours. You ask the person selling the land to prove to you that the land has a registered right of way before you buy it. A road on the ground is no evidence that there is a right to use it. A public right of way is shown by two solid parallel lines with the same letters “ROW”. If the land you are interested in has a public right of way leading to it, you will not find an easement registered on your Register. All members of the public, including you, have the right to use that road.

So, when you are dividing up your land, you are expected by any good planner to provide access for all your subdivisions. You cannot cut off some in the back without giving a right of way over one or more of the parcels to the nearest road. Problems arise in Anguilla frequently when the Planning Department tells you to provide a right of way. I have mentioned this in the previous article. You will realize by now that there were only two proper ways to do this. One is to create a public right of way, the other is to create by agreement with a neighbour a private right of way.

The Planning Department has not been following the law on either of these mechanisms. They have invented their own mechanism. Because that mechanism is extra-legal, it creates no right of way at all. What they have been doing is quite incredible. They have, with the cooperation of the surveyors, been forcing the landowner who wishes to subdivide to cut off a strip of land and to call it “ROW”. It is given a separate parcel number, just like all the other subdivisions. It is not given to government, so it is not a public right of way. It is not the subject of an agreement with a neighbour, so it is not a private right of way. It is just an isolated, inaccessible, pointless, stupid, parcel of land called “ROW”.

The correct thing for Planning to have done was to tell the landowner that he will not find it easy to sell his newly created parcels of land unless he negotiates with one of his neighbours to create a right of way leading from the nearest public road to the parcels of land in question. Either that or, if the landowner has enough pull with the Minister, he might persuade the Minister to take away land from the neighbours and to create a public road to his subdivisions. That would work, but it would require the government paying for the land taken.

In Anguilla we do none of this. Instead, we trick the landowners into believing that they have a right of way by simply making them cut off a piece of their land and call it a “right of way”. It is not an exaggeration to describe this conduct as a fraud on the public.

If you have any question about the legal implications of anything I have said above, please consult with your attorney. This is not to be taken as legal advice on which you can depend in relation to any problem that you might have.

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