EASEMENT

EASEMENT - MY RIGHT TO USE YOUR LAND TO ENJOY MY LAND.

I recently had to advise a client on its right to locate utility pipes across the land of another. I had a new course on conflict resolution, staying focused, and humility.?

FACTS

Company ‘A’ had obtained a building permit to construct a multi-store apartment complex on a parcel of land in a residential area. On-site, the engineers advised that based on the topography of the area, Company ‘A’ had to locate its storm drain and wastewater pipes through the land of its neighbour Mr. ‘B’ into the main drain in front of Mr. ‘B’s land.?

LAW

Under Ghanaian law, the right that Company ‘A’ sought to exercise was a Right of Easement over the land of Mr. ‘B’. An?Easement?is a positive or negative right of use over land that is owned by another. Technically speaking, therefore, Company ‘A’ has the right to locate its drainage pipes across the land of Mr. ‘B’ if the conditions are satisfied to exercise a Right of Easement. However, Mr. ‘B’ will not have it partly because of a long-standing mistrust between the vendor of Company ‘A’ and Mr. ‘B’. In addition, Mr. ‘B’ is oblivious to any Right called an Easement.?

RESOLUTION

An easy way of resolving this matter would have been to apply to the court to enforce Company ‘A’s Right of Easement or right of way over the land of Mr. ‘B’. However, what is the point of having a hostile neighbour when you can minimize or prevent the hostilities? Mr. 'B’ was persuaded to hire a lawyer to advise him on the matter. Company ‘A’ agreed to foot half of the legal fees of Mr. ‘B’. The matter was resolved amicably when the two lawyers worked together.

We agreed to create an Easement by Deed. The respective Rights and Obligations of Company ‘A’ and Mr. ‘B’ were clearly spelled out in an agreement. The critical points were;?

1.?????Company ‘A’ agreed to bury the pipes underground on Mr. ‘B’s land and keep the disturbance on the land to the barest minimum.

2.????Mr. ‘B’ will not incur costs in Company ‘A’s Right to the Easement over his land.

3.????Mr. ‘B’ will be compensated for the inconvenience that the placement of the pipes will cause to his enjoyment of his land.

4.???Mr. ‘B’ will not interfere with the pipes buried on his land.

5.????The right of Company ‘A’ will not otherwise interfere with the possessory Rights as well as the usual Rights that Mr. ‘B’ can exercise on his land.?

OUTCOME

The advantages of the creation of the Easement by Deed are many.

1.?????It binds Mr. ‘B’ and his successors in title.

2.????Company ‘A’ can register the Deed as an interest over the land of Mr. ‘B’. Under the Land Act, 2020 (Act 1036) an Easement created by an instrument must be Registered as an Encumbrance over the land burdened by the Easement.

3.????The registration of the Deed is a notice to the whole world about the Rights of Company ‘A’ over the land of Mr. ‘B’.

4.???Company ‘A’ has some level of certainty to access the pipes for future repairs and maintenance.

5.????Mr. ‘B’ has some level of certainty as to how the Right of Company ‘A’ affects his land.

6.???A mutual agreement ensures that both parties are as much as possible satisfied with the outcome.

TAKE HOME

The matter was resolved because the lawyers shook off the insults and absorbed them when necessary. They rose above the egos. They made a conscious effort to stay away from the ‘Politics’. The lawyers dealt with it as a commercial matter and resolved it. Despite the many temptations, the lawyers stayed on task, never strayed, and did what they had trained to do. In the end, both clients walked satisfied and the lawyers remained good professional colleagues.?