Loze v Pothin (CS 64/2016) [2018] SCSC 8173 (24 May 2018)

Loze v Pothin (CS 64/2016) [2018] SCSC 8173 (24 May 2018)

The plaintiff's land is enclaved as a result of subdivision, and the right of way should have been claimed from the owner of the mother parcel. However, since the owner of the mother parcel no longer owns any land, and the defendant is a particular successor, the right of way cannot be claimed under Article 684. The plaintiff is entitled to a right of way under Articles 682 and 683, as his land is enclaved, and the three metre right of way indicated on the cadastral plan is the least obtrusive and most direct route.

Citation
[2018] SCSC 8173
Parties
Plaintiff: Andy Loze; Defendant: Herbert Pothin
Court
Supreme Court
Jurisdiction
Seychelles
Judgment Date
24 May 2018
Case Number
CS 64/2016
Procedural Posture
Civil / Judgment
Outcome
Plaintiff's claim allowed
Legal Topics
Right of Way, Easements, Enclaved Land, Subdivision of Land
Source Language
English
Property Law Right of Way Easements Enclaved Land Subdivision of Land

Case Brief

Summary, issues, holding and outcome

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Parties

Andy Loze

Plaintiff

Herbert Pothin

Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to a right of way over the defendant's land to access the public road
  2. 2 Whether the plaintiff's land is enclaved as a result of subdivision
  3. 3 From whom the right of way should be claimed under the Civil Code

Ratio Decidendi

The plaintiff's land is enclaved as a result of subdivision, and the right of way should have been claimed from the owner of the mother parcel. However, since the owner of the mother parcel no longer owns any land, and the defendant is a particular successor, the right of way cannot be claimed under Article 684. The plaintiff is entitled to a right of way under Articles 682 and 683, as his land is enclaved, and the three metre right of way indicated on the cadastral plan is the least obtrusive and most direct route.

Court Disposition

Plaintiff's claim allowed

Orders

  • A right of way is registered in favour of Title C3105 against Title C3106 as per the cadastral plan Exhibit P2(b).
  • A perpetual injunction restraining the defendant from interfering with the plaintiff's use of the right of way, from obstructing it, or causing any damage to it.