Non-roads

If you are subdividing a Parcel of land, you may find you are presented with a plan that includes a road that is not a road. If you read my last post, you know what I mean: https://donmitchellcbeqc.blogspot.com/2022/02/roads-in-anguilla.html

The surveyor's plan that we are going to look at is not chosen because there is anything special about it. I suspect that there are hundreds of similar ones approved by the Land Development Control Committee (LDCC) and also approved by the Chief Surveyor and filed in the Survey Department. I pick it only because it involves a parcel of land in my neighbourhood, and I am familiar with it. It reveals what I consider to be an outrageous state of affairs. Let us now look at it.



This is part of a plan for the sub-division of Parcel 6 owned at the time by a Mrs Richardson of St Thomas. Parcel 6 lies to the north of my Parcels 293 and 294. It shows a right of way painted red to the west, north, and east of my Parcels. Sometime in the late 1980s, I gave this right of way to the Parcels to the east of my property so they would have access over my land to the North Hill Main Road that lies to the west.

I contacted her in St Thomas at the time I was preparing to register the right of way to the Parcels to my east. She agreed that we should register a joint right of way along our boundaries. She told me who her lawyer was. I prepared the mutual Grant of Easement forms. I sent them to her lawyer for approval and for Mrs Richardson to sign them and return them to me for registration. Months passed. Nothing came back. I repeatedly contacted the lawyer. There was no explanation why the forms were not forthcoming. I did not want to contact her behind the back of her lawyer.

I felt I could not wait any longer to register a right of way for the benefit of the Parcels to the east. I registered the forms. I hoped that in due course Mrs Richardson’s forms would turn up. At that time, the Survey Department required all rights of way be a minimum of 10 ft wide. That is why the right of way to the west and east of my lands is 10 ft wide while that to the north is only 5 ft wide. My 5 ft were supposed to be supplemented by the same amount of land from Mrs Richardson to make it 10 ft wide. Her forms never turned up and were never registered. Consequently, she never got the right of access I was offering her from the public road in the west to her Parcel in the east.

Knowing that a five-foot roadway was inadequate for the use of the owners to the east, I erected my fence around my property about 12 feet back from my boundary line on the north. There is physically plenty of room for a car to pass around my existing fence. That is the roadway I use to enter my yard from the north.

Many years later, at the height of the Anguilla land boom bubble in about 2008, I got a telephone call. Mrs Richardson was outside my northern fence. She was showing a prospective purchaser one of the lots that Parcel 6 had been divided into. I went outside to say hello. I was meeting her in person for the first time. Her surveyor was also there, as was the prospective purchaser. I then saw the plan for the first time and learned that Mrs Richardson had subdivided her land. I can only describe my reaction to this subdivision plan as shock and horror. What does it show?

First, you will notice that the plan includes “Lot #6” which is called a “Road”. You will see that it goes the full length of what used to be Parcel 6 and even swings around to the west, and then appears to end abruptly. I am not quarrelling with it. It does me no harm. But I did feel sorry for Mrs Richardson. This road is not a road at all! Those of you who are lawyers or surveyors or who have read the previous article understand that. For those of you that are unclear, let me explain.

First, up to when I last checked the alleged 25 ft road remained private land owned by Mrs Richardson. She had not been invited by government to make it a public road by way of a grant by gift or by sale. She had not given it to the government for public use. She had not signed a transfer to the Crown. It was still registered in her name, though apparently reserved for a public road in time. Despite the label, it was not a public road.

Second, if it was meant to be a road, ie, a public road, it was, in my opinion, not properly done. It did not take the future owner of any of these proposed lots to the nearest public road. Even if Mrs Richardson had made a grant to the Crown, it did not connect her land to any other public road. It did not incorporate the private road over my land. Just as I had no right to pass on the imaginary 25 ft road called “Lot # 6”, so she had no right to pass on the 10 ft right of way on my land. She could prevent me from trespassing on her Lot # 6. I could prevent her from accessing my private driveway. We had no rights over each other’s land. This was a road that was not a road and that went nowhere.

We all applaud what appears to be the effort by the LDCC to increase the road network around the island. But it should be done the right way. If what we are doing is to sneak parcels of land out of the hands of unsuspecting landowners to create public roads, that is not right. In my view that would border on an illegal confiscation of private property contrary to the Constitution of Anguilla.

What the surveyor should have done would by now be obvious to you. Mrs Richardson, or her lawyer, or her surveyor, should have contacted me and all other bordering landowners. They should have told us of her plan to sub-divide Parcel 6 with either an attached common right of way or a public road. They should have explained to us that the LDCC was insisting that the planned sub-division of Parcel 6 must include a 25 ft access road to the nearest public main road. They should have pointed out to us that we had already made provision both on the register and on the ground for a right of way. They should have asked us to contribute our provision over our lands (in my case approximately 12 ft as her surveyor would have noticed) to a common access road or right of way. There is no reason to believe that we would have had any objection. My neighbour and the landowners to the east would have got the use of a 25 ft road and would have lost nothing extra.

Mrs Richardson would have lost only about a third of an acre and not two thirds as she did. She told me she was selling one of the one-acre lots for US$150,000.00. I am no good at mathematics, but I calculate that with the loss of one third of an acre she suffered a completely unnecessary loss of about US$50,000.00 worth of land at the time.

And, she still had not got access from the main road to her land! If she tried to sell one of the new lots to a prospective purchaser who was properly advised, he or she would be told that the land had no access to a public road. No properly advised person would risk purchasing this land without a registered right of all the way to the main road.

It should be a function of the Survey Department to ensure that all landowners bordering a survey plan have consented to or have no objection to any proposed survey plan. Surveyors should be obliged to notify all neighbouring landowners and to help negotiate all relevant rights and easements. No survey should be accepted for lodging unless all relevant neighbouring landowners have signed a consent form indicating they do not have any objection, and have signed any necessary grant of easement.

Tell me if you can why my neighbour was made to proceed in this way.

As far as I am concerned this survey and its approval was a complete fiasco. And it is a fiasco that is, so far as I am aware, regularly repeated in both the LDCC and the Lands and Survey Department.

This is a revised version of an article I first published on 14 December 2007. I republish it because the problems described continue to appear. https://corruptionfreeanguilla.blogspot.com/2007/12/non-roads.html

Roads in Anguilla

 

Over a decade ago I described government's improper handling of public and private rights of way in Anguilla.  The situation has not improved.  

        A public right of way, or road, differs from a private right of way.  A private right of way is a right of passage given by one Parcel of land to another Parcel.  It may be limited by width, eg 10 ft or 4 ft, or by permitted usage, eg, by foot only or by all means including vehicles. 

A public right of way is generally created in one of two ways.  It may be acquired by the Crown by registration of a grant of easement form in exchange for some consideration, or it may be created by law.  For example, where the Crown at the request of the landowner resurfaces a private road, the Roads Act provides that the right of way automatically becomes a public road.  Occasionally, the land below the public right of way is transferred to the Crown.

None of these methods is in common use in Anguilla today.  Most of Anguilla’s public roads remain unregistered as such.  The day is going to come when the problems we have been storing up are going to explode.  I hope that they can be corrected before that happens at great cost to the Anguillian taxpayer.

Let us look at a practical example of the problem.  I have chosen a land sub-division adjacent to where I live.  This is not because it is particularly special.  It is just that I know the persons and the circumstances involved.  Also, if any “mistake” has been made, I am not the one who suffered.  If anything, I and my family are the ones who benefited from the “mistake.”  So, no one can say I am writing this out of any sense of a private grievance.  If anything, I grieve for my neighbours who have been taken advantage of for my benefit, unknowing as it was.

I am not an investigative journalist striving to get at any truth.  I am simply a retired lawyer looking at a plan which purports to show new rights created and old rights taken away.  Like most surveys, it was presumably prepared by a private surveyor at the request of the relevant landowner and was intended to be approved by the Land Development and Control Committee (the LDCC) and registered in the Lands and Surveys Department.

I invite you to study the plan: 

The late Daryl Richardson, known to everyone in North Hill as “Mr D” has now passed on, leaving three surviving heirs.  His land, originally Parcel 7, lay to the immediate west of my Parcel 293.  You see it on the plan above divided into Lots 1, 2, and 3, and “pcl 273.”  My land, Parcel 293, was originally a part of the Parcel that when subdivided produced Parcels 20, 186, 187, 202, and 293.  These lie to the south of the rights of way painted blue and red.  Let us call it the Owen Estate.

In about 1982, Mr D, as the owner of Parcel 7, together with the personal representative of the Owen Estate, agreed on a mutual right of way running up their common boundary.  It was to be a 10 ft right of way, one half on the Owen Estate and one half on Mr D’s land.  That at the time was the minimum width for a private right of way demanded by the LDCC and the Department of Lands and Surveys when land was being subdivided.  What happened in this instance was the representative of the Owen Estate gave Mr D a five foot right of way up the boundary of the Owen Estate.  In return, Mr D gave the Owen Estate a five foot right over his Parcel 7 from the North Hill Road up to the boundary line with Parcel 293, save for the first part of the dogleg which was entirely on Parcel 183, then part of the Owen Estate.  This mutual right of way is shown painted red on the plan above.  As I recall, I personally prepared the grant of easement forms and registered them in the Land Registry.

Years passed and the right of way worked well.  Then, Mr D died.  He left a Will giving Parcel 7 to his two sons and a daughter.  His daughter inherited “Lot 1” with the house alongside the Road.  His sons started building on Lots 2 and 3.

His Executor hired a land surveyor to divide Parcel 7 and distribute it as provided in the Will.  The surveyor knew that the LDCC now required a 25 ft private access instead of the previous 10 ft when land was being sub-divided.  The result is the plan in front of you.  You can see that the surveyor made provision for access westwards from my Parcel 293 down to the North Hill Road.  He did this by creating a separate Parcel of land which is coloured blue and labelled “pcl 267.”

The earlier private right of way is coloured red.  The proposed new access route coloured blue, Parcel 267, starts in the west at the Public Road and measures 26 feet wide heading east.  At some point it becomes 21 feet wide.  All of it is taken from Mr D’s Parcel 6.  None of it comes from the Owen Estate.  The surveyor appears to have ignored the mutual 5 ft rights of way.  At any rate, he never discussed with me or the Owen heirs the possibility of our agreeing to join in a mutual access provision to make it 25 ft wide.

What is so irregular about this proposed access?  First, it goes right up to my Parcel 293, though I was never offered a right of way over it.  I have no right to use it.  If it was intended as a private right of way for the benefit of Lot 3 to access the Main Road, it should have gone only up to the western boundary of Lot 3.  It should not have gone past that to my boundary.

Alternatively, it may have been intended to be part of a planned but unannounced public road.  For Government to acquire it as a public road, they must either ask Mr D’s Executor to grant it freely to the Crown or pay compensation for it.  From what I was told, they did neither, so the road is still registered, so far as I know, in the Executor’s name as private property.  As it is not registered as a public road, no adjoining landowner has the right to use it along with other members of the public.  It appears to be some sort of a private right of way ending where it informally and irregularly joins my land, Parcel 293.

Second, it is not the subject of mutual easements of right of way.  I cannot use any part of it as my private right of way.  Proposed Parcel 267 is called a “ROW” or right of way on the survey plan, but I am told it remains registered as private property.  Just seeing it on the survey plan or on the Register does not give me a right to use it.  That does not bother me as I am perfectly content with the present registered 10 ft private right of way.

Third, the way the LDCC has apparently insisted the plan be drawn, the intended private right of way over Mr D’s land has been cut off into a separate Parcel 267, reducing the size of Lots 1, 2, and 3.  A right of way over a Parcel of land is not created by subtracting it from the original land.  The original dimension of the land should continue, but with a private right created over the designated part of it.  A public road, by contrast, can be a separate parcel of land owned by the Crown, ie, the public.  Looking at this plan, the clear intention was to take a piece of Mr D’s estate and make provision for a subsequent public road, not a private right of way.

Fourth, I have a problem with the LDCC and the Surveys Department not insisting that land surveyors consult with neighbours of Parcels of land they are surveying.  That is common practice in other parts of the West Indies.  It would have been more advantageous for the heirs of Mr D’s estate if they had negotiated with the heirs of the Owen Estate to share the burden of either a private or a public right of way or road.  They would not have lost so much land as they ended up doing.  And the rights of the public would have been increased.

Fifth, the new right of way has been made into a separate parcel, Parcel 267.  It is in my view, completely and fundamentally wrong to create a separate Parcel of land to constitute a private right of way.  A private right of is a contract between two or more landowners.  They can agree to vary the right of way by further agreement.  All rights of way are either a private right enjoyed either by one landowner over the land of another landowner or it may be a public right enjoyed by the public over land of a citizen.  Or, or it may be created by transferring a part of private land to the Crown for use as a public road.  Such a public road may or may not be registered as a separate Parcel.  As I recall, there are examples of both in the Land Registry.  Separating off a Parcel of land to create a private right of way makes it very difficult and very expensive for the owners of the right of way to agree to alter the location or dimension of the right of way.

Creating a separate parcel but leaving it indefinitely in the name of the landowner, might be a device to block off the land so that hopefully, one day, through usage, the government can acquire it freely, without having to pay anybody for taking it for the public use or taking the trouble to negotiate for a grant for public use.

What is wrong with that, you may ask?  The normal practice in the Commonwealth Caribbean is for governments to negotiate with private landowners to acquire the right for the public to pass over their land.  This is accomplished either by government paying the landowner for the public right of way, or asking the landowner to donate it for public use, or using public money to repair the right of way at the request of the owner.  It is only fair to all Anguillians that these proper procedures be followed.  It would be quite wrong, if indeed that is what is happening, for government to cut off private land slyly and surreptitiously to convert it in later years into a public road without any discussion with the landowners.  Or, am I being paranoid?

Finally, what was the use of starting the proposed new roadway, Parcel 267, over Lot 1?  This new road would ignore the existing dogleg right of way over Parcel 186.  Was it done just to straighten up the right of way?  That makes no sense to me.  The existing right of way passed over the land that had clearly been designated and left by the Owens for the purpose of access from the road to all the lands to the east.  It was sufficient for use by the largest truck.

The narrow strip of land that you can see forming the western bit of Parcel 186 (probably about 30 ft wide) connecting it to the North Hill Road is not capable of being used for any other purpose than the access road it was intended for.  In my view it was completely unnecessary to have taken 26 feet out of the south of Mr D’s daughter’s garden (up against her house), while abandoning the existing right of way provision just a few dozen feet away!

The private surveyors tell me that there is nothing they can do about this.  They say it has been settled on by the LDCC.  They tell me that any survey for a subdivision will not be approved by the LDCC or the Director of Surveys if there is no access provided for other surrounding lands.  They say that the LDCC has told them they must make provision for access out of the land they are surveying if their proposed survey is to be approved.  If this is so, which I doubt, the surveyors are, in effect, blackmailed into forcing their clients to give up some of their land for public access if their survey is going to be approved and they are to get their survey fee paid.

Others tell me that the LDCC has made no such ruling.  The LDCC has merely mandated that, when a sub-division is being made, there must be access for all resulting lots.  The Committee does not apparently care how it is done.  They would no doubt prefer the surveyors to assist their clients in negotiating with the neighbours to get them to agree on what is fair to all, a mutual right of way along their joint boundaries.  If they cannot agree on this within a reasonable time, then the right of way provision might have to be imposed on one person’s land.  But that would not be the preference of the LDCC.  It is perhaps simply that the land surveyors do not wish to be bothered to contact all surrounding landowners and to discuss and mediate an agreed mutual 25 ft right of way.

I don’t know what to make of this confused situation.  If rights of way continue to be mis-handled in this way, someone (probably the unsuspecting Anguillian public) will one day have to pay.

A revised version of an article previously published on 7 December 2007: https://corruptionfreeanguilla.blogspot.com/2007/12/acces