Explanation of Article 703
The article stipulates that the owner of a property that does not connect to the public road has the right to pass through the neighboring property to his land. This right is established for the property owner by law in two cases:
- The first case: If the property does not connect to the public road from all sides, such that the property owner has no way to the public road except by passing through his neighbor's land.
- The second case: If the property can potentially connect to the public road, but access to it is only possible with excessive expense or great difficulty, such as the presence of a valley or similar obstacle on the side not adjacent to the neighbor, which requires excessive expense to create a road connecting to the public road, or if access from that side involves great difficulty due to its ruggedness, for example.
Accordingly, if the property owner can reach the public road without excessive expense or great difficulty, such as having an easement right to pass through one of the neighboring lands acquired by legal action or inheritance, he is not considered isolated from the public road, and thus this right is not established for him by law.
Whenever either of the two aforementioned cases is met, the property owner has the right to pass through his neighbor's land. However, the article stipulates that the establishment of this right for the easement property owner is subject to three restrictions:
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The first restriction: This right must be to the extent customary for the use and exploitation of the property, and according to need. This is related to the nature of the property and the ways it is exploited. If the isolated land is agricultural, it requires a sufficient road for the passage of agricultural equipment, whereas if it is not exploited, it only needs a sufficient passage for the landowner. If the agriculture is seasonal, he has the right to pass during the season only.
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The second restriction: This right must be in exchange for fair compensation commensurate with the damages that may result from it, whether the compensation and its payment method are determined by agreement between the owner of the isolated property and the owner of the property on which the right of passage is established, or otherwise determined by the court.
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The third restriction: This right is only established in the property where the passage is least damaging and in a location where this is achieved; it is an emergency right, and necessities are measured by their extent. If there are multiple neighboring properties, the property with the least damage is chosen, and if the property where the passage is to be made is identified, it must be in a location that is less damaging than others. If the property is developed in part and vacant in another, this right is in the vacant part, and if the property is fully developed, the use of the right is restricted to the part that is less damaging, such as if one part is built and the other is cultivated, the use is restricted to the cultivated part because it is less damaging.
Once the location of the passage is determined, the owner of the isolated property only has the right to pass through it to reach the public road; he is not considered its owner, but the passage is owned by the landowner, and the holder of the right of passage may only use it according to the restrictions established for this use.
Related To
Article 703
The owner of a real property which has no access to a public road or whose access thereto is costly or burdensome may, against a fair compensation, exercise the right of way on an adjacent real property to a reasonable extent. Said right shall be exercised only on the real property the passage through which causes the least harm and on the part where such passage can be achieved.