Defining Easements & “Right-of-Way”
A “Right-of-Way” is the legal right, established by usage or grant, to pass through the property of another. Typically, this is restricted to a specific route and area, and fenced off from the rest of the property. A right-of-way is “servidumbre” in Spanish. The word “servidumbre” includes rights-of-way & easements. Easements allow access to land for things like natural resources, development and pipelines, or construction and maintenance. An example of an easement would be sewage pipes passing underground. A right-of-way, on the other hand, allows the person to travel through the property. Public right-of-way typically includes the street, the curb, alleys, sidewalks, planting strips, all the way up to the fence.
When someone owns land hemmed in on all sides by other private land, a court will grant that person a right-of-way through neighbouring land, if this has not already been granted by use, custom or grant. For example, when someone buys a lot from a larger land owner who has road access, the seller must ensure that the buyer has road access through the principal property. This seller may establish a right-of-way through a tranch of their land.
Regulation of right-of-way & easements in Panama
The Civil Code of Panama (1917) regulates rights-of-way and easements (Servidumbres) in Title X. This Title of the Code covers definitions, general rules, how to acquire rights, rights and duties of the parties, and how to extinguish rights. The Code goes so far as to cover grazing rights, water rights, and the such. The Mining Code and Administrative Code also govern some easements for specific purposes. The Environmental Authority of Panama establishes special rules regarding water rights. The Ministry of Housing and City Council establish special regulations and approvals regarding new development projects. Our office advises on Ley 6 (2006), one of the many laws regarding real estate development in Panama.
Problematic right-of-way & easements
Our firm deals with right-of-way problems, especially where these affect communities. A recent case involves a community that wished to protect themselves from becoming a thorough-fare. A developer built a gated community, and then “opened” a gate from her new development into the neighbouring community to provide another exit to the main roads. In this case, the gate violated building permits issued by the City Council. The affected community shut the right-of-way, and the developer asked the local Sheriff to enforce the right-of-way, in spite of having planning permits rejected by the City Engineers. The Sheriff ordered the right-of-way be opened, ignoring the City Council’s rejection of the permit.
In this case, our firm appealed to the Mayor’s office, as the Mayor is the next instance for appeals. We presented the Mayor’s office with the City Council’s order (Secretaría Técnica Judicial de Edificaciones y Construcciones), rejecting the gate and right-of-way. They overturned the Sheriff’s decision to order the right-of-way through this community for a number of reasons.
Firstly, the Administrative Code of Panama establishes in Article 1325 that the appropriate authorities in case of dispute of rights-of-way or easements are the courts. The Sheriff’s office must enforce the judgement by the court, but they do not have jurisdiction to hear the complaint. Hearing the complaint violated the rights of the community to be heard in an appropriate forum. Secondly, the developer ignored the City Council’s order, violating urban development rulings.
Please contact Betsy Moran for more information regarding Community Protection.