The editor informs me that Rights of Access is a hot topic at present. For those of you who may be struggling with this problem, or hoping never to have such a problem, below I have detailed some information that may be of use.

When land is owned by an individual or is proposed to be bought, the way of avoiding becoming landlocked is to register a servitude right that ‘attaches’ to the title of the land, known as the ‘dominant’ land, and runs across a third party’s land, known as ‘servient’ land.

A servitude is a right that grants use or specified use of another’s property. While this might not necessarily relate to access, it does in most cases.

Some important practical matters to note when thinking about such access rights granted through a servitude are:

1. The most secure type of servitude is a registered servitude, which is noted against a chanote land title.

2. To support a servitude and its registration and subsequently any disputes, the original registration of a servitude, if registered as part of a purchase deal, should be supported by a written contract setting out the purpose of the servitude and who is responsible for enforcing rights under it.

3. The owner of the ‘servient’ land or the land through which the access runs, must refrain from any act which ill tend to diminish the use of the servitude or make it less convenient.

4. The owner of the ‘dominant’ land is entitled at his own expense to do all that is necessary to preserve and make use of the servitude. He must, in doing so, cause as little damage as possible to the servient property. In relation to developments where a servitude has been registered against the main title, the Civil and Commercial Code states at a relevant provision that a “Servitude acquired or exercised by one of the co-owners of the dominant property is deemed to have been acquired or exercised by all co-owners”.

Of course, despite the specific provisions of law that enable registered servitudes to be enforced, there is a tension between private and public property where it meets.

Third parties are entitled to exercise their rights in relation to public land and under certain parts of Thai law that includes using other private property in order to do so. Detailed review of the way in which these rights are exercised is necessary to ascertain if any rights have been usurped or breached.

Public land is, to all intents and purposes, inviolable in Thailand and the government has a right to use public land in ways it sees fit.

However, in relation to third parties exercising their rights over public land that may interfere with private land and servitude rights, the following provision may be relevant “If a person in the exercise of his rights causes to the owner of an immovable property greater injury or inconvenience than should naturally and reasonably be expected or anticipated, having regard to the nature and situation of such property, the owner is entitled, without prejudice to any claim for compensation, to have such injury or inconvenience abated.”

However, this does not specifically apply to temporary interference. A well-placed sign, a wall and a diligent security guard are practical ways to prevent temporary interference but might not for one reason or another be practical.

Ultimately, an event organised by a public body could arguably be deemed to be in the best interests of the public, take place on public land and the actions of third parties in relation to third party property will not necessarily be the concern of a public body.

Diplomacy, contact with the decision-makers and acknowledgment of local customs will be critical in such cases.

Desmond Hughes is a partner in Belmont Limcharoen.
Tel: +66 (0) 76 342 882-4
Fax: +66 (0) 76 342 885
Mobile +66 (0) 9772 5077
desmond@belmontlimcharoen.com
www.belmontlimcharoen.com