In times gone by, our grandparents and great-grandparents understood the concept of investing in land. There were many older ones who would always advise that “land don’t rotten”.
Their belief that land was a good investment led to the purchase of acres of land, not like the one lot we are now constrained to purchase due to current market prices. These acres of land would sometimes become huge family compounds with siblings being gifted various portions to occupy with their families. The boundaries of which were only known by word of mouth, but not documented anywhere. But, in those days, family was family; in these modern days, family doesn’t carry the same meaning.
Our great-grandparents are long gone and many of us no longer have grandparents. What we are left with are deeds for acres of land that either already contain the names of all the persons living on the land or in need of probate. This is where the new-fangled meaning of family is usually on full display. Suddenly, with the death of the family matriarch or patriarch, the persons to benefit from the invested acres forget about the understood boundary lines, about the family that peacefully shared their ancestors’ investment and, suddenly, a fight ensues for every extra inch, foot and lot.
When several family members inherit or have their names included on deeds for large portions of land, disputes can easily follow. The first order of business for most people entails having their individual deeds so that they can have the benefit of their own share. This entails surveys and all the necessary approvals for subdivision.
These surveys may sound simple enough and with a family that shares a similar understanding, it certainly is. Then, there are the families who decide they suddenly don’t like where their boundary is, the ones who refuse to respect the need for a road reserve, the ones who believe they deserve a little bit more; these are the families that end up in costly disputes.
A road reserve is usually the issue that wreaks the most havoc in some land disputes. When acres of land have to be divided, there is always the need for a road reserve, not just to secure final approval, but also because some form of access will be necessary for persons to get in and out of their lands. In most instances, a right-of-way would have already existed.
A right-of-way being either an undeveloped road or track which have always been used to either walk through or for vehicle to drive through as an access. Over the years, persons seeking to develop or subdivide, or even new owners, have believed that they can make the unilateral decision to destroy, close, block or hamper the use of an accessway. This is usually done because the right-of-way represents a few feet of land that no one is willing to lose.
In fact, I have noticed, of recent, many social media posts depicting persons trying to take over rights-of-way once used by families, or even physical blows over the use of rights-of-way. It should be understood that rights-of-way are protected by the courts.
The courts understand the need for a right of way and can order the use of a right-of- way through necessity. Necessity simply means that this right-of-way has been used by parties for some time and there are no other means of accessing the other properties or land. There are people who live on land that is completely landlocked. There are properties on either side of theirs and without the right-of-way, they have no means of accessing their property. Due to the absolute need for the right-of-way, the court can make orders directing that it be used as an access.
The laws of our country also recognise prescription when it comes to land and a right-of- way. Prescription means that if a right-of-way has been uninterruptedly used for a period exceeding 16 years, then the user has acquired a right to use the accessway and cannot simply be debarred from use because of a new owner, change in relationship or some developed animosity.
Sadly, many families, in attempting to subdivide lands or share inherited lands, end up in costly land disputes.
Costly, because pride and a few feet extra results in disputes heading straight to court. The need to pay attorneys and land surveyors or other experts to give evidence will quickly add up. These disputes will also take years out of your life and destroy already fragile family relations. It may be difficult for some people to believe, but the extra feet of land aren’t worth it. In many instances, it is better to be open to advice and understand rights, instead of letting what amounts to greed or unfairness destroy a legacy that ancestors worked hard to leave behind.
Pavitra Ramharack is head of chambers at Pavitra Ramharack Attorneys at Law and can be reached at ramharack_pavitra@outlook.com
