2017.01.26
Luke Hung
Article 789 of the Civil Code provides: “If, in consequence of a transfer of a part of a piece of land or of a partition of a piece of land, the land has no suitable access to the public road, and is not fit for ordinary use, the landowner, in order to reach the public road, is only entitled to pass through the land owned by the transferee or the transferor or the other partition recipients. The same rule shall be applied, if a piece of land has no suitable access to the public road and becoming unfit for ordinary use after the owner of many pieces of lands has transferred some of the lands or simultaneously transferred all lands to others. In the case of the preceding paragraph, the person entitled to passing through shall not liable to make compensation.”
The National Property Administration under the Ministry of Finance issued the Tai-Cai-Chan-Shu-Guan-10500385030 Circular of January 26, 2017 (hereinafter, the “Circular”) to communicate that the restriction on the right of passage under Article 789 of the Civil Code does not apply to landlocked lands created as a result of the government’s requirements for cultivating freeholding farmers. It was first pointed out in the Circular that if a landlocked land is created because a part of a land is auctioned as a result of compulsory enforcement, the restriction on the right of passage for landlocked lands under Article 789 of the Civil Code does not apply, since this is not caused by any arbitrary act of the land owners or is expected to be arrangeable in advance.
It was further pointed out in the Circular that based on the same legal theory mentioned above, when the government implemented the policy of farmers’ land ownership by partitioning public arable lands before selling them to farmers pursuant to the Implementation Rules for Cultivating Freeholding Farmers by Selling Public Arable Lands enacted by the Taiwan Provincial Government, although the nature was also private law sales contract, still the partition was conducted by the government to cultivate freeholding farmers so that lands could be sold to the farmers tilling the lands. If a landlocked land was created, it was certainly not caused by any arbitrary act of land owners or expected to be resolved through prior arrangements. In addition, this had nothing to do with whether auction winners or public land buyers were willing to buy. Therefore, the restriction on the right of passage under Article 789 of the Civil Code should not apply, either.