• Please help. Need access to property

My Father recently gifted us the back half acre of his lot. We installed a double wide mobile home. We added septic & well to the property (have the legal permits) we are waiting for power to be installed. 

Here is our problem. My aunt owns the 10ft gap of land in-between County dirt road & my property line. She has informed me she is putting up a fence & won't allow me to put a gate in her fence (offered to pay for & install) so I can access my driveway. She is doing this out of spite. She was gifted this small piece of land by my grandfather 9 years ago and has never done anything with it except park unsightly broken down vehicles & junk on it. She lives miles away from the property, her property doesn't have any kind of utilities or even a designated address. She is only putting up a fence so she can be spiteful, always causing family problems. In the front of the property, where my Dad lives, he has his own drive way that wraps around his house from the main street, I drive past his house down a county dirt road to the back of the acre property, then turn into my house. She is going to make it so I can no longer do that & wants me to drive from main street to my half of property, but my Dad has so many out buildings & wood piles, that is not possible or feasible.

What rights do I have to be able to put a gate in her fence so I can access my driveway?
Is this considered a spite fence? 
Can I fight for easement for a driveway?
Or apply for approach permit?

I need options, thank you for your time.
Asked 4 years ago in Property Law
Religion: Christian

First answer received in 10 minutes.

Lawyers are available now to answer your questions.

7 Answers

You can claim easmentary right of necessity if you don’t have any other access to your land 

 

2) 

Section 13 of the Indian Easements Act deals with easement of necessity An easement of necessity means an easement without which the property cannot be used at all. Mere convenience is not the test of an easement of necessity. It can be claimed only when there is absolute necessity for it, i.e. when the property cannot be used at all without the easement and not merely where it is necessary for its reasonable, or more convenient enjoyment. A man cannot acquire a right of way as an easement of necessity, if he has any other means of access to his land however more inconvenient it may be than be passing over his neighbours.

3) under section 35 of easement act you can obtain permanent injunction restraining your aunt  from obstructing your right of passage . pending hearing and final disposal of suit you can claim interim reliefs .

Ajay Sethi
Advocate, Mumbai
97480 Answers
7880 Consultations

From your contents there appears that you do not have any rights to use her property for your access or drive way.

You have other options for your access to road, hence you cannot claim her property for your easement requirements. 

However you may consult a local advocate and obtain an opinion about it before planning to initiate any legal action on this.

T Kalaiselvan
Advocate, Vellore
87682 Answers
2354 Consultations

It is a spite fence because your aunt is not using her property except for parking junk vehicles 

I am afraid of you can fight for easement as the half acre is a part of the other half owned by your dad. Also you also have easementary rights from your dad's half acre but he has also blocked it wood piles and out buildings. If you sue your aunt she may probably resist that suit by saying that you have remedy against your dad and not her 

Is the half acre gifted to you sub divided?

 

Yusuf Rampurawala
Advocate, Mumbai
7746 Answers
79 Consultations

 

If you have proof that you and your family using the road which approach from your aunt gate from last 9 years and she do  not have problem since last 9 years and suddenly started spite fence, but as per the Easement Act you can stop her doing so and ask for your rights to way towards your home.

Ganesh Kadam
Advocate, Pune
12997 Answers
264 Consultations

If it's a common gate then rights are limited if it's a private land in your share you can very well do it. 

Yes easement can be initiated

Prashant Nayak
Advocate, Mumbai
32849 Answers
209 Consultations

Dear Sir,

1.Yes there are easementary rights attach along with the property according to Transfer of Property act so you can take permission from court to have that drive way so as to access you property.

2. Yes it can be considered as a spite fence if she want to trouble you in any way by putting fence and don't want you to access that easementary rights attached to your property.

3. You have full rights to fight for easement right as you have right to property and easement right is actually attached to the property so.

4. You can approach for permission for your easementary rights and provide her a legal notice for giving you your rights and can provide her the stay orders till the time case hasn't resolved.

 

Anik Miu
Advocate, Bangalore
10376 Answers
121 Consultations

1. An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own,” reads the Indian Easements Act 

 

2. So, you can file a Suit claiming your easement right on your property through the land of your Aunt.

Krishna Kishore Ganguly
Advocate, Kolkata
27512 Answers
726 Consultations

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer