Gedeon v Rath (CS 71 of 2022) [2024] SCSC 201 (29 November 2024)

Gedeon v Rath (CS 71 of 2022) [2024] SCSC 201 (29 November 2024)

GOVINDEN CJ

Introduction

  1. The case concerns a right of way and “assiette de passage” in respect of two adjoining properties. The Plaintiff is the owner of title V18955, and the Defendant owns parcel V18954. The Plaintiff’s land enjoys a right of way over that of the Defendant’s by virtue of a Judgment by Consent dated the 16th of January 2013. This right, however, was not registered as an encumbrance in favour of parcel V 18955 and against V18954 under the Land Registration Act.

  2. The Plaintiff’s case is that the location of the right of way, as per the Judgment, has become more onerous to the Plaintiff as it denies him the use of a small area of his land enclaved within the Defendant’s property, and that the location of the said right of way prevents him from carrying out a residential development on his property.

  3. The Plaintiff avers that he has offered the Defendant an alternative place of equal convenience for the use of right of way passage on his property, to be built at his own cost, but that the Defendant has refused the offer.

  4. Accordingly, the Plaintiff moves this Court to enter a judgment declaring that the right of way from the main road going through the Defendant’s property passes through the passage that he had recently offered the Defendant; and that the Court orders for the relocation as per its judgment; and that the Land Registrar is ordered to enter an encumbrance against parcel V18955 in respect of the new passage of the easement.

  5. The Defendant, on the other hand, has filed a statement of defence that, apart from the merits, raised two pleas in limine litis.

  6. The point of law states that the Plaint does not disclose reasonable cause of action and that the Plaint is not maintainable in law, as ex facie the pleadings, as the cause of action has been the subject matter of a judgment of the Supreme Court.

  7. On the merits the Defendant accepts the existence of the right of way on her property. She, however, avers that it is limited to the prior judgment of this Court, which binds both parties, and that attempt to alter the Judgment constitutes an abus de droit. The Defendant further denies that the right of way has become more onerous for the Plaintiff and avers that any relocation will gravely and adversely affect the use of her own property, as it will deny her the ability to develop it, namely the construction of a house for her daughter.

The Evidence

  1. The Plaintiff, being a minor of 15 years old, was represented by his father, Mr Terry Gedeon. He testified that his son Yerik Gedeon owns parcel V18955 and that the Defendant, his former spouse, owns an adjoining parcel bearing title V18954, over which there is a right of passage reserved for parcel V18955. Both parcels were formerly under his ownership during his marriage with the Defendant and registered as parcel V6666, upon which the matrimonial house is located.

  2. The parcel V6666 was subdivided into the two parcels, and parcel V18955 was transferred to the Defendant, with a right of way reserved in favour of V18955 during the course of matrimonial property settlement following their divorce, by way of a Judgment by Consent on the 16th January 2013. This was case CS 71/2012. The copy of this Judgment was produced as Exh P3, together with an attached plan demarcating the current right of way. He later transferred his parcel to his minor son Yerik. The parcel V18954 is occupied and owned by the Defendant.

  3. Terry Gedeon testified that he has a plan to develop Yerik’s plot and build an apartment block. This plan was not approved by the Panning Authority as the Defendant does not want the right of way to be moved to accommodate his development. He had a Surveyor survey the parcels, and the right of way can, according to him, be properly moved, with his own funds, so that he can proceed with his development while the Defendant retains her access to her property. This has been refused by the Defendant. He produced the Site Plan Survey done by Michel Leong, Land Surveyor, detailing evidence and it is marked as Exh P4. The plan moved the entry point onto the Defendant’s property so that he would have more space on the Defendant’s property for parking space. He plans to bear all the cost involved in the relocation. According to him, this will not cause any disruption or inconvenience for the defendant. He was not aware that following the filing of the Plaint the Defendant had built a dwelling house on her parcel.

  4. Michel Leong is a licensed Land Surveyor. He was mandated to carry out some works on behalf of Mr Terry Gedeon on parcel V18955. He drew a Survey Plan showing a new three-meter drive or right of way from the existing access through plot V18955 to access the adjoining parcel V18954, which is shown on Exh P4. The witness identified the existing right of way and the proposed new one on the Survey Plan. As per the proposal, the Defendant has to concede a pavilion, part of her garden, a concrete platform up to the existing retaining wall, and a retaining wall.

  5. The Defendant testified that Terry Gedeon is her ex-spouse. She is the owner of parcel V18954. By virtue of the judgment by consent in CS 71/12, the matrimonial property V6666 was subdivided into two parcels V18954 and V18955. The existing road access was annexed to the said judgment on a Survey Plan and made part of the Judgment and this is her only access to her property. She does not agree to the new passage being proposed as it will involve demolishing part of a retaining wall and inconvenience her daughter’s new dwelling house, and the proposed alternative would be less usable than the current one.

Locus in quo

  1. The Court, parties and their counsel went on a locus in quo at upper Belvedere, Mahe, where the parcels are situated. The Court appraised itself of the locations of the two parcels and their topography. It was clear to the Court that the Plaintiff would not be able to carry out his development plan without altering the existing assiette de passage, and doing so would lead to the demolition of certain structures on the Defendant’s parcel, as referred to in this judgment.

The Law

  1. First, Article 639 states:

An easement arises either from the natural position of land or from obligations imposed by law or from agreements amongst owners.

  1. Article 682 states:

1. The owner whose property is enclosed on all sides, and has no access or inadequate access on to the public highway, either for the private or for the business use of his property, shall be entitled to claim from his neighbours a sufficient right of way to ensure the full use of such property, subject to his paying adequate compensation for any damage that he may cause.

2. However, where the owner has been deprived of access to a public road, street or path in pursuance of an order converting a public road into private property, the person who has been granted such property shall be required to provide a right of way to the owner without demanding any compensation.

  1. Article 686 provides:

An owner may create upon his property or in favour of his property such easements as he deems proper, provided however that the easements created neither bind persons nor are they in favour of persons but apply only to property and are for the benefit of property, and provided also that the incidents are not contrary to public policy. The use and the extent of easements thus established are governed by the conditions contained by the document of title which created them, and in the absence of such document by the rules stated hereafter.

  1. Article 691 also provides in relevant part that:

Non apparent continuous easements and discontinuous easements, apparent or non apparent, may not be created except by a document of title.

  1. Article 695 states:

The document of title creating the easement, insofar as the easements which cannot be acquired by prescription are concerned, may not be replaced except by a document of recognition of the easement emanating from the owner of the servient tenement.

  1. Reading Article 639 and 691 together leads to my understanding that an agreement among owners can create a right of way and that this agreement can only be created by a document of title. In this case, the title to the right of way in favour of the Plaintiff is the Judgment creating the right.

  2. The combined interpretation of the aforementioned articles is that a right of way may be established where a landowner does not have direct access to a public road. This right is binding between the parties and must be exercised in a way that imposes the least burden on the servient estate.

  3. Once a servitude, such as a right of way, has been established, it can be modified or altered with the consent of both parties, or if there arises any dispute, such as in this case, by a court finding that circumstances have changed significantly. If it becomes impossible to use, too difficult, or if a change would provide a less burdensome solution for both parties, a change in a right of way is permitted by French jurisprudence. The authors Terré and Simler state:

L’assiette et les modalities du passage peuvent etre modifiées, à la demande d’un changement de la destination de l’exploitation de ce fonds. Les besoins de l’exploitation qui motivent le droit de passage s’apprécient au moment où la prétention à la modification est émise. La servitude peut être lors non seulement modifié, mais deplacée et transportée d’un fonds sur un autre.

Le changement peut aussi être décidé à la demande du propriétaire du fonds servant, à condition que le passage primitive soit devenu pour lui incommode… (Francois Térré et Philippe Simler, Droit civil – Les biens, 8e edn, Dalloz p. 256).

  1. The authority above is to the effect that both the proprietor of a servient and a dominant tenement may demand a variation in the position of a right of way in circumstances when the existing position of the right of way becomes too inconvenient for the servient tenement. The existing right of way can be displaced or transported to other property. This was confirmed in the case of Edmond & Edmond & Chetty & Chetty & Victorin v Chetty & Government of Seychelles (CS 228/2011) [2017] SCSC 302 (30 March 2017).

Issue for Determination

  1. I have carefully scrutinize the content of the pleadings in this case together with the written submissions in light of the evidence tendered by both parties to the suit. It is clear to me that this court is tasked with determining not the existence of the right of way but whether in the circumstance of the case the “assiette de passage” can be modified in favour of the Plaintiff.

Determination

  1. The Plaintiff seeks to change “assiette de passage” of the right of way, while the Defendant opposes any such alteration. The Court’s decision will take into account relevant provisions of the Civil Code of Seychelles; the Land Registration Act and pertinent case law.

  2. The right of way, which is illustrated on Exh P1, was created through Judgment by Consent in the matrimonial property settlement between the father of the Plaintiff and the Defendant. In the said Judgment, the former subdivided his property into two, keeping parcel V18955 to himself and transferring parcel V18956 to the Defendant with a right of way in favour of his parcel on the Defendant’s property. He later transferred his parcel to his minor son. The route, while agreed upon by both parties, was not registered under the provisions of the Land Registration Act. The Plaintiff now petitions the Court to alter the right of way for reasons that the Plaintiff feels its location affects a development to be carried out on his property and that it is now more onerous on him, given that it leaves part of his property enclaved into the Defendants’ property. The Defendant opposes any modification, arguing that the route should remain in place as per the original judgment.

  3. It is common ground that the right of way was not registered as an encumbrance on parcel under the provisions of the Land Registration Act, following its creation; however, it nonetheless remains binding between the parties.

  4. Section 52 (3) of the Land Registration Act (LRA) provides in relevant part:

The grant of the easement shall be completed by its registration as an encumbrance in the register of the land burdened and in the property section of the register of the land which benefits, and filing the instrument

  1. The court in Morin v Simeon and Ors (CS 389/2006) [2016] SCSC 512 (15 July 2016) in reconciling this provision of the LRA and that of the Civil Code held that the provision of the LRA is to be construed in line with the principles of legal interpretation as set out above. It is in pari materia with the Article 639 of the Civil Code in terms of the requirements for creating the easement. The easement thus created by law (the provisions of LRA) and the registration bind the dominant tenements on which they have been created. Registration would have been necessary in order to protect the servitude against third parties, but its absence does not affect the validity of the agreement reached between the two parties. Moreover, being converted into a Judgment of the Supreme Court, the agreement has “autorité de la chose jugée”and is binding as law upon the parties to it. As I have mentioned above, it clearly gives title to the right of way to the Plaintiff.

  2. In this case it is clear that the Plaintiff wants to alter and modify the “assiette de passage” for his own convenience and to suit his own needs. He has decided to build an apartment complex on his property, which requires a sizeable parking space; hence his request to shift the route closer to the Defendant’s property at her loss. Having gone on the locus it is clear to the Court that this will come extremely close to a house that the Defendant has built for her daughter on her parcel, hence severely inconveniencing both the mother and daughter. The Defendant would have to lose her garden, a pavilion and a retaining wall. On the other hand, the existing right of way does not preclude the Plaintiff from developing his property. He could have chosen to build a dwelling house, and the existing access would have accommodated this development. As to the issue of enclavement that he raised in the Plaint, the Court finds that this is a relatively small loss and should have been a matter to have been considered when the right of way was given to the Defendant by the Plaintiff through the Consent Judgment. At any rate, the existence of such an enclave presents no significant change in circumstances to the Plaintiff’s disadvantage that would call the Court to reconsider this issue.

  3. In this case, the right of way was established by the Judgment by Consent, but the Plaintiff now seeks to alter the route for reasons that have not been shown to be of significant practical necessity. Applying the principles established and the provisions of the Civil Code, it is clear that the right of way, once agreed upon and determined, should not be easily disturbed unless it becomes impossible or overly difficult to use, and hence more onerous upon the petitioning party. The Plaintiff has not demonstrated that the current route is impractical, nor that the proposed modification would significantly benefit both parties without imposing additional burden on the Defendant’s property. To the contrary, it is proven on a balance of probabilities that altering the right of way as suggested by the Plaintiff would prove very burdensome for the servient estate, whilst disproportionately assisting the dominant.

  4. Additionally, any modification to an agreed servitude must show that it serves a practical need and does not merely reflect the personal preferences of a party. Since the Plaintiff has not presented compelling evidence of necessity or impracticality of the current route, the Court sees no reason to modify the right of way.

  5. Having come to this finding, the Court would make no determination on the two preliminary objections raised by the Defendant.

  6. Accordingly, the Court rules that the right of way as established by the Judgment by Consent remains binding and unaltered. The Plaintiff’s request for modification of its ‘assiette de passage’ is denied as no compelling reasons have been established; the right of way, though not registered as an encumbrance under the provisions of the Land Registration Act, remains valid and enforceable between the parties.

Order

  1. The Plaint is dismissed with costs in favour of the Defendant.


 

Signed, dated and delivered at Ile du Port on 29th November 2024.


 

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Govinden CJ

 

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