Rights of Way in Barbados

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Rockley Resort is a venerable and well-loved institution on the Barbadian tourism map. It has experienced some financial ups and downs, but it has survived through several changes of ownership and has recovered its former popularity. Well known as a golfing Mecca, Rockley is perhaps less well known as a former defendant in an obscure legal case from the year 1982, Naime v Rockley Country Club, in which the plaintiff, a neighbouring house-owner, complained that a right of way across his property was being abused by the defendant. Naime alleged that the defendant’s right of way was confined to pedestrians and one or two private cars, and he sought an injunction to restrain what was described as a constant flow of traffic, including mini-mokes, coaches and Transport Board buses, going to and from the Club. Before considering the ramifications of this case, I would like to outline some of the important features of rights of way in Barbados from a legal perspective.

Rights of way in English/Barbadian law fall under the law of easements. An easement is a legal right ‘in alieno solo’, meaning ‘over the land of another’, and a right of way across neighbouring land is the commonest type of easement. Other common species of easement are the right to run pipes for the supply of water or gas, or electricity cables, across adjacent land; rights of support (for example, where one half of a duplex house has a right to be supported by the other half), rights to light (a right to the uninterrupted flow of light through windows), and parking rights (the right to park a vehicle anywhere in a parking area). Less common examples of rights that may qualify as easements are the right to use an office washroom, the right to hang washing on a clothes line, and the right to store coal in a shed.

In order to qualify as an easement, the right claimed must possess certain characteristics; in particular, the right must be for the benefit of a defined property (whether land alone, or house and land), and not just for the benefit of an individual person; in legal parlance, there must be a ‘dominant land’ capable of benefiting from the easement, and a ‘servient land’ to be burdened by the easement. Thus, for instance, in the Rockley Club case, the dominant land (for the benefit of which the right of way had been reserved in a 1937 conveyance) was the Rockley Club, and the servient land over which the way was exercisable was Naime’s adjacent property. Such a right of way will benefit the dominant land by providing sufficient pedestrian and vehicular access, and its existence will no doubt enhance its value. Furthermore, as an easement is an interest in land and not a mere licence or contractual right, it will be enforceable by successive owners of the dominant land against successive owners of the servient land.

In cases of dispute, a person claiming to be entitled to a right of way must be able to show that he has validly acquired the right. Most often, a right of way will be acquired by express grant or reservation, that is, through a deed of conveyance: where, for example, a vendor sells part of his land and retains the rest, he may, in the conveyance, ‘grant’ to the purchaser a right of way over the land retained by him, or he may ‘reserve’ to himself a right of way over the land being sold, or he may do both. In the Rockley case, for instance, the Club had reserved to itself a right of way over the neighbouring property when it sold and conveyed the latter to a purchaser in 1937.

Another method of acquisition of a right of way is by ‘implied grant’. Implied grant may occur, first, in cases of ‘easements of necessity’, that is where a ‘landlocked’ plot of land is purchased. Of course, any prospective purchaser of a property would be well advised to visit the property and inspect it and its surroundings thoroughly, in order to satisfy himself that there is sufficient pedestrian and vehicular access, and most attorneys will advise their clients to do this; but, in the event that, after completion of the sale, it is discovered that the property lacks any right of access to the outside world, for instance where it is completely surrounded by land retained by the vendor, or surrounded partly by the vendor’s land and partly by that of a third party, application can be made to the court for an easement of necessity over the vendor’s land. Easements of necessity are quite common in Caribbean countries, especially in rural areas where boundaries are often not well defined.

Another instance of implied grant is where V, the owner of two adjacent lots, sells one (Lot 1) to a purchaser and retains the other (Lot 2). If, for example, before the sale, V had been in the habit of using a path across Lot 2 as a short cut to a minimart on the other side of the property, the purchaser of Lot 1 may acquire an easement of way across Lot 2 by implied grant, under the principle of ‘non-derogation from grant’, meaning that the purchaser should not be in any less advantageous position than his vendor. A right of way may also be implied under s 66 of the Property Act, Cap 236, the effect of which is that a mere licence or permission to use a way across a property will, on a conveyance of the adjoining property, ripen into an easement of way in favour of the latter.

Another method of acquiring a right of way is by ‘prescription’ under the Limitation and Prescription Act, Cap 232, where the owner of land allows a neighbour to walk or drive across his land for 20 years or more, without physically interrupting him or bringing legal action against him. A Barbadian example is the case of Hart v Pierce (1967) where, for about 21 years, the occupants (and their predecessors) of a house near the beach at Worthing had used a narrow path traversing the grounds of an adjacent house to go to and from the beach, without any interruption from the owners of the latter house. It was held that they had acquired a permanent right of way over the path, based on the ‘acquiescence’ of the latter. However, obtaining a right of way by prescription is not easy, because of the rule that the use of the way must not be by force, or secret, or by the permission of the servient owner. So, if the claimant breaks down a fence in order to walk through, or passes through clandestinely, or with the verbal or written consent of the servient owner, he will not obtain a right of way; nor will he acquire such a right if the servient owner brings an action for trespass before the 20 year period has run out, since this will show clearly that he has not acquiesced in the claimant’s conduct. The reason why a right of way cannot be acquired by prescription where the servient owner consents to the claimant’s use of the way is that such consent amounts to a licence to use the way, and a licence is considered to be inconsistent with an easement, which gives rise to a legal right exercisable at the will of the dominant owner and irrespective of the wishes of the servient owner.

Returning to the situation in the Rockley case, it was not disputed that the defendant had acquired a right of way by express reservation in the 1937 conveyance of the servient property; what was disputed was the extent of that right of way; was it confined to pedestrians and one or two private individuals, or could it legally be used by any number of private, public and commercial vehicles going in and out of Rockley Resort? It was significant that at the time of the 1937 conveyance the Rockley property was a disused golf course, but it had later been developed into a large resort comprising 300 apartments with a golf course, tennis courts, swimming pools, restaurants, bars, and a disco. Clearly, the changes to the dominant land had imposed a much greater burden on the servient property, but was the current servient owner entitled to an injunction to restrain the increased use of the way? The Barbados High Court held that the servient owner could not object to the increased use, because the wording of the reservation in the 1937 conveyance gave Rockley an unrestricted right of way, which was not limited to the amount or type of traffic that would have used the way in 1937, and could validly be used to whatever extent was required by the current owners of the dominant land.

Finally, it is recognized in Barbados that a right of way will cease to exist if the dominant owner expressly releases it by deed, or shows by his conduct that he has abandoned it. In another Barbadian case, Dear v Wilkinson (1960), a right of way across an adjoining property was granted in a 1913 conveyance to the predecessor-in-title of the current owner of the dominant land. One of the terms of the grant was that a pathway should be laid out over the servient land; this was never done, and the condition of the servient property over time underwent changes, including the erection of a sea wall, the planting of trees, and enclosure with a wire fence. Successive owners of the dominant land were allowed access to the beach across the servient land by oral or written permission, on payment of an annual fee. The current dominant owner claimed an easement of way, but it was held that the right of way granted in 1913 had ceased to exist, owing to the acquiescence of successive dominant owners in the changes made to the servient property by its owners, which amounted to abandonment of the right.

The foregoing brief overview of rights of way in Barbados shows that they are subject to complex legal rules which are mostly within the specialist knowledge of conveyancing attorneys. However, rights of way are sufficiently vital and important to property owners that some knowledge of their legal framework is desirable for all such interested parties.

Written by Dr Vanessa Kodilinye, Attorney-at-Law 30/06/2015

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