By Joseph Wong

Several years ago, a four-acre plot of land about 20km away from the city centre was purchased, following a brief visual inspection. The buyer, initially considering it solely as an investment, found himself enamoured with its picturesque agricultural setting, complete with undulating terrain and a small stream. The property even boasted a dozen durian trees ready to bloom.

Fast forward to the present and the owner's plans have evolved. Money is no longer the driving force. Instead, a desire to embrace a more rural lifestyle in their twilight years has taken precedence. This corporate maverick, accustomed to the boardroom in the city's concrete jungle, now yearns for a return to nature – to become a gentleman farmer, tending to an orchard and breathing in country air.

However, a significant hurdle emerged. The property is land-locked, lacking direct access to the main road. Despite legal access rights, the narrow pathway isn't suitable for larger vehicles needed for construction or farming purposes. Negotiations with the neighbouring landowner to secure a permanent passage through his land proved fruitless.

Based on a true story

Sounds far-fetched? The above was based on a real-life scenario. Moreover, such incidents happen more often than not. As the road networks branch out from city centres, there is no guarantee that every parcel of land will be connected to a road. Moreover, land that is only accessible by rivers or waterways was not viewed as unreachable in the past but might face construction limitations in modern times.  

A quick search in online property portals selling real estate reveals that numerous parcels will face land-lock issues. And if the buyer is unwitting, they might just find themselves in a quandary.

In the case of the above land-locked owner, realising the necessity of legal intervention, he sought advice on obtaining an easement. For the uninitiated, the right of passage that a neighbouring land owner would grant is called an easement under the National Land Code 1965. Without the benefit of an easement (a legal right running with the land), a parcel of land will become inaccessible and, hence, land-locked.

If the neighbouring land owner is willing, both land owners would only need to execute an instrument known as Form 17A and then have it registered at the appropriate land registry. This is outlined in the Code.

Once registered, the land-locked parcel, being the dominant land, would enjoy an easement over the neighbour’s land, which is the servient land. Since the easement would run with the land, it would not matter if the neighbour subsequently sold his land to someone else. The easement is permanent as long as it remains on the register. That is the essence of the Torrens system.

The issue lies in the fact that an easement, like any other dealing under the Code, must be granted voluntarily by the owner of the servient land. There is no easement by compulsion under the law. That means that if the neighbouring owner is unwilling, gaining an easement is not feasible.

Not every land owner will be so willing to allow for an easement through his or her property. This is because they will be losing a partition of their land which will be made into a road for the land-locked owner. 

And even if they are willing, the owner of the servient land would naturally seek compensation. In past cases, the land-locked owner would purchase a portion of the neighbouring owner’s land to be made into a road. That is if the neighbouring owner is willing to sell. 

If the neighbouring land owner refuses, the land-locked owner will have the daunting task of applying for a Land Administrator's Right of Way, under Part 28 of the Code. With the assistance of legal counsel and potentially influential connections, the owner must navigate bureaucratic processes to ensure the realisation of gaining an easement. Due to legal technicalities, the result is not guaranteed.

Different in East Malaysia

However, buyers will also need to take note that the Code does not apply to Sabah and Sarawak which have their own land ordinance although they are similar in nature. For instance, in Sarawak, If the land owners concerned cannot agree among themselves to the location of the path or track which will constitute a right of way, the matter shall be referred to the Superintendent and it is the Superintendent who has the power to decide on the matter. 

At the end of the day, buyers are advised to do their due diligence and not expect that they will automatically given the Right of Way if their property is land-locked.

Stay ahead of the crowd and enjoy fresh insights on real estate, property development, and lifestyle trends when you subscribe to our newsletter and follow us on social media.