"There is a road to the land. Still need to check the right of access?"

A buyer visits a piece of agricultural land that appears suitable for a small farm and homestay project.

A gravel road connects the land to the main road. The seller explains that everyone in the area has used it for many years.

The buyer signs a booking form based on that assurance.

During the legal review, the buyer discovers that part of the access road crosses a neighbouring owner’s private land. There is no registered right of way shown in the documents provided.

The neighbour has allowed people to pass until now.

But will the buyer have a legally enforceable right to continue using that route after completing the purchase?

A visible road and a legal right of access are not necessarily the same thing.

1. First identify where the road is located

The buyer should determine whether the route is:-

• A gazetted public road.

• A road reserve.

• Situated within the land being purchased.

• Located on neighbouring private land.

• Part of common property in a development.

• Subject to a registered easement.

• Provided under a temporary construction arrangement.

• Merely used with the neighbour’s informal permission.

A road may appear public because it is used by several people. That appearance does not conclusively establish its legal status.

The title, certified plan, relevant searches and information from the land office or local authority should be reviewed.

2. Long use does not necessarily provide permanent legal protection

The seller may say:-

“We have used this road for 20 years and no one has ever complained.”

That history is useful evidence of the practical situation, but it should not be treated as equivalent to a properly documented and enforceable right of access.

A neighbour who has tolerated access may later:-

• Install a gate.

• Impose conditions.

• Sell the land to someone else.

• Change the use of the land.

• Demand payment.

• Dispute the width or purpose of the route.

• Prevent construction vehicles from passing.

The buyer should determine whether the right is legally attached to the land or depends only on the goodwill of the current neighbour.

3. What is a registered easement?

An easement can give one parcel of land a specified right over another parcel, such as a right of way.

Its scope depends on the registered terms.

The documents should clarify matters such as:-

• The precise route and width.

• Whether access is pedestrian or vehicular.

• Whether heavy or commercial vehicles may use it.

• Whether utilities may be installed.

• Who must maintain the road.

• Whether gates may be erected.

• Whether the right benefits the land generally or only a particular party.

• Whether there are restrictions on time or purpose.

A general statement that “access is provided” may be insufficient if the buyer intends to use the land for commercial, agricultural or development purposes.

The National Land Code contains the legal framework for dealings and interests in land, including easements, in Peninsular Malaysia.

4. A right to walk across land may not support a development project

The intended use matters.

Access that is adequate for a small house may not be adequate for:-

• Construction machinery.

• Agricultural lorries.

• Customers and guests.

• Emergency vehicles.

• Utility installation.

• Subdivision into several lots.

• A factory or commercial operation.

Planning approval may also require access of a particular width and standard.

The buyer should therefore investigate both legal access and whether that access is practically and legally sufficient for the intended development.

5. Access to utilities should be checked separately

A road does not automatically provide a right to install water pipes, electricity cables, drains or telecommunications infrastructure through neighbouring land.

Separate permissions or easements may be required.

Before purchasing undeveloped land, the buyer should identify:-

• The nearest connection points.

• The route required for each utility.

• Whether the route crosses other land.

• Who must approve the installation.

• The likely connection and infrastructure costs.

• Whether drainage can lawfully be discharged.

• Whether the project requires upgrading of the existing road.

A low land price may become less attractive if substantial sums are required to create lawful access and utility connections.

6. Financing may be affected

A bank’s valuer may take the access position into account when valuing the property.

Uncertain or inadequate access can affect:-

• Market value.

• Margin of financing.

• Resale prospects.

• Development potential.

• The bank’s willingness to accept the land as security.

The buyer should not assume that financing will be approved merely because another nearby property has obtained a loan.

The bank will assess the specific land and documentation offered as security.

7. What should the Sale and Purchase Agreement provide?

If access has not been confirmed before signing, the agreement should address the issue expressly.

Depending on the transaction, the buyer may require:-

• Documentary proof of lawful access.

• Registration of an easement before completion.

• Consent from the relevant landowner or authority.

• A condition that satisfactory access approval be obtained.

• A plan identifying the agreed route.

• A right to terminate and recover payments if the condition is not fulfilled.

• Protection against material changes before completion.

The seller should not promise to “settle with the neighbour later” without a clear timetable and enforceable documentation.

8. Inspect the route, but verify it against the documents

The buyer should visit the property and examine:-

• Where the route begins and ends.

• Whether it matches the plan.

• Its width and physical condition.

• Existing gates or obstructions.

• Signs of disputes with neighbours.

• Whether vehicles can turn and enter safely.

• Whether flooding affects access.

• Who currently maintains the road.

A title search alone may not reveal every practical problem. A site visit alone may not reveal the legal status.

Both are needed.

Land that cannot be reached lawfully or used in the intended manner may have far less value to the buyer than its size and location suggest.

Before buying, do not merely ask, “Is there a road?”

Ask, “What legal right will I have to use it after I become the owner?”