When the right of way is blocked. The way of necessity is worked. This article is going to cover the way of life in Phuket and the rest of 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 a specially prepared land surface that humans and/or vehicles can use. But the way is not only on the land’s 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 has been the way since the beginning. The other one is a public way, which is given to the public from private property. Finally, the private way is divided into three types: the way of necessity, consent servitude and legal servitude. This article series focuses on the three types of private roads with land surfaces.
Way of Necessity in Thai Law
According to the Civil and Commercial Code (CCC) Section 1349, a sense of necessity is needed in the case of a plot of land surrounded by another plot of land. Put 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 an easy passage to a public road, for instance. In addition to talking 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 road. The key thing to remember is that the right to pass over the surrounding land arises without the consent of the surrounding landowner. Whenever land is blocked by surrounding land, the owner of the land that is blocked can apply to the court to open the way.
That is the idea of the law. Land with no access road is worthless. So, an access way to a public way is necessary for the land. But, in another meaning, “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 it, it arises without consent. Therefore, the owner of the plot of land that is blocked must use the passage to meet his needs. And also cause as little damage to the land surrounding it as possible. Moreover, the owner of the plot of land that is blocked must pay compensation for damage to the owner of the land surrounding it. It may be paid annually.
On top of this limitation, the limit of this right is that the owner of the land that 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 the CCC, the word public way includes the waterway but not the airway; if the plot of land can access a public waterway, 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 parcels without compensation (CCC Section 1350), no matter whether the land is subdivided at the same time or at a different time.
Another type of way in Thai law is the “servitude way,” or easement in English law. By contrast, servitude rights may arise by “consent servitude of the land surrounding or by law. The interesting point about consent servitude is that it always applies in real estate areas in Phuket. Because consent servitude is not only a way but also an access road, as well as other utilities that benefit the land, not a person! You may be interested to read the servitude rights.
If you are in need of a real estate lawyer or for more information, feel free to contact us at any time.