Understanding Easements: A Right-of-Way Dispute Explained for the Everyday Jamaican
- winston roberts
- May 14
- 4 min read
Imagine owning a piece of land, but the only way to get to it is by walking or driving across your neighbour’s land. If your neighbour agrees, or if the law requires it, this granted permission is known as an easement.
For an easement to exist, the following basic requirements must be satisfied (as confirmed in Re Ellenborough Park and Powell v Maddison [1956] Ch 131, 163):
There must be two separate pieces of land, one that benefits (dominant) and one that bears the burden (servient).
The easement must benefit the land itself, not just a person.
The two lands must be owned by different people.
The right (like a right of way) must be something the law can recognize.
Does Mere Access Establish an Easement?
In the case of Errol Bennett v. LHCC Perfect Homes Limited and Ian K. Levy [2023] JMCC Comm 22, the Claimant, the person bringing the Claim, argued that he owned certain lots (26 and 28 of a development or “Strata”) and needed to use a road on a neighbouring piece of land (the “Disputed Road”) to access them. He said that this road had always been used as a right-of-way for a period exceeding twenty (20) years and that this uninterrupted use gave him legal rights over it.
The land with the Disputed Road is now owned by a company called LHCC Perfect Homes Limited, but both properties were originally part of the same land title before being subdivided.
How Did the Claimant Argue His Case?
The Claimant submitted five possible reasons why he should have a legal right to use the Disputed Road:
Prescription: He said he had been using the road for more than 20 years without anyone stopping him, which, under Jamaican law, can create a legal right.
Continuous Use: He and others before him used the road for over 30 years, which also supports a claim under the Prescription Act.
Necessity: He claimed the road was the only way to access his land.
Implied Grant: He said that when the land was sold in the past, it was assumed that use of the road would continue.
Express Grant: He claimed the right-of-way was explicitly given when the land was transferred in the past.
What Were The Court’s Findings?
After reviewing land titles (past and present), surveys, and hearing from expert witnesses, the court made the following key findings:
No Express Grant: There was no document clearly giving the Claimant a right of way over the Disputed Road. Of note, there was an incumbrance on the respective Titles which clearly stated the point at which the users of both properties would be able to enter/exit the premises. The court also noted that there was no evidence of an easement over the Disputed Road being notified or shown on the Strata Plan, or of any unanimous resolution by its proprietors directing the corporation to accept a grant
of easement over the said road.
No Necessity: The court found that the Strata lands had a different entrance that connected to the main road. So, access through the Disputed Road wasn’t strictly necessary.
Unclear Survey Diagrams: While older diagrams showed the road as a “right of way,” later ones called it a “reserved road.” Experts admitted that such labels can be based on guesswork, and the court wasn’t convinced that they proved a legal right.
No Evidence of Implied Grant: Although the lands were once owned by the same person, there was no strong evidence that the Disputed Road was always used to access the Strata before the lands were sold off separately.
Claimant was not a Fee Simple Owner: Notably, the Claimant failed to establish that he held legal title to the properties, which he alleged benefited from the use of the Disputed Road. As a result, he was precluded from asserting any entitlement to a right of way, whether by prescription, necessity, or implication.
Key Takeaway: What This Means for Landowners
This case reminds us that just using a road for a long time isn’t always enough to gain legal rights. Depending on the claim that is being made, you may need solid evidence, such as proof of property ownership, proof of uninterrupted usage over twenty years, surveys, title, Strata Plans, Strata Corporation Resolution, and/ or proof that the road/property was the only means of access, etc. Each case will determine the required evidence.
If you’re buying land in Jamaica, especially in a shared development or strata, check your titles carefully. Make sure that any access roads are either:
clearly granted in the title, or
well-supported by historical usage and necessity.
Final Thoughts
Easements like rights of way can be complex. They often arise from years of informal use or misunderstood boundaries. While you may believe you’ve always had the right to use a certain path or road, the law demands proof. And without that, you could find yourself, like the Claimant in this case, without the access you thought was guaranteed.
When in doubt, consult a land surveyor and an attorney before making assumptions about property rights.