If you are interesting to know about ‘way’ in Thai law or you want to know that what can you do if ‘the right of way is being blocked’. This article is useful to you.
Thai Law uses the word “WAY” not “ROAD”. This is similar with 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 includes Land, Water and Air.
Thai law divides the way into two main categories, namely the public way and the private way. The public way is divided into two types: 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. 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.
1. Way of Necessity
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, where there is no access to a public way or a passage over a pound, marsh, sea or with a strong steep slope and not easy passage to a public road. Thai people know and call this type of plot of land “Tee Din Ta Bod” (ที่ดินตาบอด) which 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, 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. 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) The idea is the land without an access road is a land with no value of the use thus an access way to a public way is necessary for the land.
Because the Way of Necessity is a limitation of the right of use of the owner of the land surrounding and arising without consent. The owner of the plot of land which is blocked must use the passage to meet the needs and cause the damage to the land surrounding as less as possible but the road for a car or another vehicle can be constructed for passage if necessary (Supreme Judgement Number 86/2505), The owner of the plot of land which is blocked must pay a compensation for a damage to the owner of the land surrounding, may be made by annual payment.
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)
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.
In Ep. 2, we are going to write about ‘Servitude Way’ both ‘Consent servitude and Legal servitude’. Consent Servitude which arises from the consent of the land surrounding it, which always applies in Real Estate Areas in Phuket. The interesting point of the Servitude is, it includes a way, access road and other utilities which be benefit the property.
Thank you for reading.
Article by Akenarin Thongplod
Thai Barrister at Law
Notarial Services Attorney