When the right of way is being blocked. The way of necessity is worked. This article is going to the way of necessity in Phuket, Thailand.
Basic Law of Way in Thai Law
First of all, Thai law uses the word “WAY” not “ROAD”. This is similar to the law in another country. The words Way and Road have similar meanings but they are not exactly the same. Road means specially prepared land surface which humans and/or vehicles can use. But Way is not only the land surface. But also water and Air.
Secondly, Thai law divides the way into two main categories, the public way and the private way. Thirdly, the public way is divided into two types. One is a real public way which is the way since the beginning. The other one is a public way which is given to the public from a private property. Finally, the private way is divided into three types: way of necessity, consent servitude and legal servitude. This article series focuses on the three types of the private way with the land surface.
Way of Necessity in Thai Law
According to the Civil and Commercial Code (CCC) Section 1349. A way of necessity is needed in case of a plot of land surrounded by another plot of land. Put it another way, it is not only where there is no access to a public way. But also a passage over a pound, marsh, sea or with a strong steep slope and not easy passage to a public road for instance. In addition to talk with Thai people about this, Thai people know and call this type of plot of land “Tee Din Ta Bod” (ที่ดินตาบอด). It means the land without an access road.
In this case, the law allows the owner of the land without an access road to pass over the surrounding land to the public way. Key thing to remember is the right to pass over the surrounding land arises without consent of the surrounding land owner. Whenever land is blocked by the surrounding land. The owner of the land which is blocked can apply the request to the court to open the way.
That is the idea of the law. The land without an access road is a land with no value of the use. So, an access way to a public way is necessary for the land. But, in another meaning, the way of necessary means the limitation of use.
limitations of Use of Way of Necessity?
Because the Way of Necessity is a limitation of the right of use of the owner of the land surrounding. And it arises without consent. Therefore, the owner of the plot of land which is blocked must use the passage to meet the needs. And also cause the damage to the land surrounding as little as possible. Moreover, the owner of the plot of land which is blocked must pay compensation for a damage to the owner of the land surrounding. It may be made by annual payment.
On top of this limitation, the limit of this right is that the owner of the land which is blocked must request to open the way to a public road only (Supreme Judgement Number 906/2476, 533/2500). Also, Under Section 1349 of CCC. The word public way includes the water way but not the airway, it means if the plot of land can access to a public water way, this section can’t be applied (Supreme Judgement Number 277/2495, 1192/2508)
Anyway, the access road for a car or another vehicle can be constructed for passage, if necessary (Supreme Judgement Number 86/2505).
When the right of way is being Blocked by the Land Subdivided.
In case the land is blocked because the land is subdivided. The passage must apply to one of the subdividing land without compensation (CCC Section 1350), no matter whether the land is subdivided at the same time or different of time.
Another type of way in Thai law is ‘Servitude Way’ or Easement in English law. By contrast, the servitude rights may arise by ‘Consent servitude of the land surrounding or by the Law. The interesting point of the consent servitude is it is always applies in real estate areas in Phuket. Because the consent servitude it not only a way, access road. But also other utilities which benefit the land, not to a person! You may be interested to read the servitude rights.
Thai Barrister at Law, Thai Attorney at law and Notarial Services Attorney.