Right of Way and Easements in Mauritius: What a Buyer Should Check

Land without guaranteed access is worth far less than it looks. The Mauritian Civil Code gives the owner of landlocked land a right to cross a neighbour’s plot, but only against compensation and along the route that does the neighbour least harm. It treats a path written into a deed very differently from one that has simply been tolerated for years. Before you buy, check three things: how the plot reaches the public road, whether that access sits in a registered (transcribed) deed, and which easements already burden the land.

What is a servitude under Mauritian law?

Article 637 of the Mauritian Civil Code defines a servitude (an easement) as a burden placed on one property for the use and benefit of a property belonging to another owner. It attaches to land, not to people: article 686 does not allow it to be imposed on a person or granted in favour of a person. It therefore stays with the land when it changes hands, and the buyer inherits it.

The Code names three sources (article 639): the natural lie of the land, the law, and agreements between owners. A right of way comes from the last two. It is also a “discontinuous” servitude (article 688), meaning one that needs a person to act for it to be used. That label decides how a right of way can come into being.

Landlocked plots: the right of way given by law

Article 682 lets the owner of an enclosed plot claim a sufficient passage across neighbouring land. It covers a plot with no exit to the public road, or with an exit that is not enough for normal use of the land or for building or subdivision work. The passage is paid for: the compensation must be proportionate to the damage caused. The Code does not put a figure on it.

Two rules govern the route (article 683). The passage is normally taken where the way to the public road is shortest, but it is fixed where it does the least harm to the land that bears it.

If the plot became landlocked through a division of land by sale, exchange, partition or any other contract, the passage can only be claimed over the plots that came out of that division (article 684). Only if no sufficient passage can be created there does the general rule of article 682 apply. If you are buying a lot split off a larger estate, start here: the neighbour in question is not just any neighbour.

Thirty years of continuous use fix the position and manner of the passage (article 685). The right lasts only as long as the enclosure does, though: once the plot has proper access by other means, the owner of the burdened land can ask at any time for the servitude to end, and, failing agreement, a court records it (article 685-1).

Outside enclosure, a right of way exists only through a deed

A plot that touches the public road gives no right to cross a neighbour’s land. An extra passage, for instance to reach the back of a plot, has to be provided for in a deed. Article 691 is clear: discontinuous servitudes, whether visible or not, can only be created by a deed, and even immemorial possession is not enough. A track used for twenty years with a neighbour’s tacit agreement therefore does not, in itself, create a right.

Transcription: an unregistered servitude may not protect you

The Transcription and Mortgage Act requires the transcription of every deed recording a servitude, a right of use or a right of habitation over immovable property, and of any judgment declaring that such a right exists (section 3). Section 5 draws the consequence: a right in immovable property arising from a deed or judgment cannot be asserted against a third party whose rights are secured by law until the deed or judgment has been transcribed.

For you, this cuts both ways. If your access rests on a servitude deed, check that it has been transcribed, or a later buyer of the neighbouring plot could challenge it. And if the seller mentions a servitude burdening the land, ask your notary what has actually been transcribed. The notary’s part in these checks is described in our article on the notary in a property purchase.

What to check before you sign

• The actual route. Walk the way from the public road to the plot and note every parcel you cross. If one belongs neither to the seller nor to the public authority, you need a written right of way or a legal basis for one.
• The deed. The passage must appear in the seller’s deed and in that of the neighbour who bears it. Ask for its width, route, beneficiaries and permitted use.
• The intended use. The holder of a servitude may use it only as its deed allows, and may not make any change that worsens the burden on the neighbouring land (article 702). If you plan to build, check that the passage can take lorries and site machinery, and do not assume a footpath will.
• Upkeep. Works needed to use and maintain the servitude are paid for by the person who benefits from it, unless the deed says otherwise (articles 697 and 698).
• The servitudes your plot bears. The owner of land that bears a servitude may do nothing to reduce its use or make it less convenient, and may not move it on their own initiative unless they offer the other owner an equally convenient spot (article 701). A gate, a wall or a pool on the route is something to settle before you buy.
• Your plans to divide. If the land that benefits from a servitude is divided, the servitude remains due for each part without increasing the burden, and all the co-owners must use it at the same point (article 700). That matters if you plan to split the land to resell or to build several houses, for example within a morcellement.
• The plan. Have a land surveyor mark the access route on a plan and attach it to the sale agreement.

These checks apply to building land and to an existing house alike. A foreign buyer applies them in the same way: the rules specific to foreign status are covered in our guide to buying land in Mauritius as a foreigner, and price benchmarks are on the land prices page.

If a neighbour blocks or disputes the passage

A dispute is decided on documents and proof. In a judgment of the Intermediate Court of 17 March 2020 (2020 INT 55, Foolchand v Foolchand), the claimant relied on a right of way under his title over a road 1.83 m wide. The court recalled that a servitude may be used only as its title allows, without a change that worsens the position of the burdened land (article 702). It dismissed the claim: the claimant had not proved the obstruction he alleged, and a concrete step and a gate that had been there for over forty years, with the neighbours’ verbal consent, were not held to be a hindrance. The decision turns on its own facts. What it shows is that a neighbour who says they are blocked must be able to prove it, and that long-standing tolerance carries weight.

Keep the grounds for extinction in mind too. A servitude ends when the land that benefits and the land that bears it come into the same hands (article 705), and after thirty years of non-use (article 706). For a right of way, the thirty years run from the day the holder stopped using it (article 707). A path left unused for decades may therefore no longer be enforceable.

Limits of this analysis

This article rests on the text of the Civil Code and the Transcription and Mortgage Act. There is no official scale for compensation for a right of way, and every case depends on the deeds of both plots. Before signing, have the notary review the deeds of both properties, and do not start any work on an access route without a written agreement.

Sources and checks

• Registrar General’s Department – Code civil mauricien, articles 637 to 639, 682 to 685-1 and 686 to 707.
• Mauritius Revenue Authority – Transcription and Mortgage Act, sections 3 and 5.
• Kohen Avocats – Intermediate Court of Mauritius, 17 March 2020, 2020 INT 55, Foolchand v Foolchand.