Traditional paths, caught between law and private property

PalmIn Mallorca, there are more than 300 closed public roads, according to data from the Public and Open Roads Platform. The Camino de la Señora (Lady's Way), the Camino de la Font Major (Font Major Way), and the Camino de la Cueva (Cueva Way) are some examples. These routes were used to carry news and trade to properties in the past. They were also used as shortcuts to save time when the only means of transport was carts and many roads did not yet exist. Platform member Sebastià Matamales laments that, "since land has become a financial asset and has been the subject of continuous speculation," the value formerly given to properties with roads has changed. "Before, a property without a road was worthless, and now it's worth much more if it doesn't," he adds. On the islands, there are public roads closed by property owners and others that, over the years and through lack of use, have been obstructed by nature.

What is a public road? Who determines it is one? How is it handled when a person buys a property through which paths pass? A path is publicly owned "when it has been open since time immemorial, it has always been used publicly, and no one knows who or how it was created," explains a lawyer specializing in paths who prefers to remain anonymous. However, he warns that "a path can lose its public character if it has not been used for many years and nature has covered it, if it has been disfigured." The same thing happens "if for years the Administration, which has the obligation to ex officio recover the property that has disturbed it—which has been used for private purposes—has not bothered about whether it belonged to it or not," he adds. The path in Ternelles (Pollença) "was once royal and public, but when they bought the King's castle, the path also entered the property," the minister explains. He also laments that, after filing "two contentious lawsuits and a civil lawsuit to determine the ownership of the path, the rulings determined that it was private."

The municipal trail catalogs recognize those paths registered as public. But this classification "can be disputed, and the decision is made by a civil judge," explains the lawyer. The Balearic Law on Public Trails and Hiking Routes in Mallorca and Menorca (December 2018) requires municipalities to maintain this catalog, but "few are doing the work," complains Sebastià Gaià, a member of the Pro Camins de Manacor platform. However, he notes that recently some municipalities "show a willingness" to do so, such as Felanitx, Petra, and Sant Llorenç.

"There are many trails that are not registered in either the trail catalogs or the municipal inventories. Without a catalog indicating that the trail is public, the municipality has no legal authority to claim it as its own," asserts the lawyer. In this situation, it is difficult for the municipality to open the barrier. "If the catalog says it's public, they can open it, and then the owner can sue if they want. But if it's not registered, it's more complicated because you have to prove with documentation, maps, plans, or witnesses that there was continuous public access," explains the lawyer.

If it comes to trial, "city councils have more difficulty defending it." However, Gaià explains that public ownership of the path "can be proven with old documentation about the road or if the municipality's city council has carried out work." It can also be proven "with the work carried out on the path that's registered." In the past, "if they didn't have the money to pay the city taxes, they worked for the council. They used to repair the paths. This work was called 'fajines,'" he explains.

The president of the Federation of Local Entities of the Balearic Islands (FELIB), Jaume Ripoll, is unaware of why some municipalities do not do this work, as he pointed out in ARA Baleares. On the other hand, the Consell de Mallorca, which approves the road catalogs of the island's councils, did not respond to questions from this media outlet and simply pointed out that the roads are "under municipal jurisdiction."

Many properties on the islands are owned by private owners, and areas such as the Tramuntana mountain range stand out. Private roads allow access subject to conditions: "If the owner reaches an agreement with the council or because the Administration agrees or imposes a right of way," which is a legal right that allows one person to pass through another's property. "But it doesn't have to be for an unlimited time," the lawyer assures.

If the government imposes a right of way, "if the courts uphold it, the owner will be forced to let people through, but they will be compensated because it is a significant limitation for the landowner," the minister points out.

If the owner of a private property through which a road with a right of way passes (which is registered in the property registry) sells it, "this right affects in all respects all the owners that the property may have in the future," he explains. However, he warns that if there is a written agreement (but it is not registered in the property registry, so it does not affect third parties) between the owner and the government, and this is not communicated to the buyer when they acquire the land, the buyer may be able to break it.

In addition to written agreements limiting time and other factors for passage, "there may be tolerance limits," in the event that an owner voluntarily allows passage without reaching an agreement with the Administration. Sebastià Matamales recalls that on a property in Manacor, members of the Platform spoke with the owner "and he didn't raise any issues." "They cooperated as much as they could," he insists. In the case of public roads, the Administration can impose limits "however it wishes." But both city councils and island councils take into account "environmental factors, which prevail over urban planning," Matamales adds.

Social Pressure

Social pressure from pro-pathway organizations has been key to opening closed public roads. Thanks to the insistence of residents and the recent demonstration held on Camino Vell de Costitx to demand its reopening after being closed for 15 years by a private owner, the Sineu City Council will consult with the Council's legal and technical services regarding the two existing rulings (corresponding to 2009 and 2010).

Matamales celebrates that the Manacor Pro-Roads Platform has managed to open approximately 15 paths. But he emphasizes that the municipality has almost 36 that are still closed. He also acknowledges that, in order to open them, they have had to confront some property owners. "They pushed us, they filed false complaints, but in the end it was nothing," he says. However, he believes that "no homage should be paid to anyone by allowing them to pass through a public path." Some property owners refuse to let strangers pass through their property and have even filed lawsuits for this reason. Matamales says he knows of a case of a property owner who threw manure on a path to prevent anyone from crossing.

The Ibiza case

"Unlike Mallorca, the properties in Ibiza are much smaller, which makes the trail network very extensive," explains Joan Costa, an anthropologist who participated in the cataloging of Ibiza trails. He estimates that there are "thousands" of closed trails. Some have been usurped "without any interest in doing so," he notes. "The countryside has stopped being cultivated, and in many cases, the trails are bagged and overgrown with weeds, making it easier for owners to appropriate them because no one can pass through," he explains. He adds that "only Santa Eulària has a trail catalog completed, and it's incomplete," says Costa, aware of the "thorough work and the brutal investment of time" that must be made to catalog the trails.

The anthropologist believes there is a lack of "citizen mobilization." He emphasizes that the touristification of the area is also the cause of the closure of some trails. "Everyone is fed up with motorcycles and quads passing them by, and their fruit being stolen, so they close them down. If there's no documentation recognizing them as public, there's no way to defend them," he laments.

Island residents complain that the Portmany path, the Pitxa path, and the old Els Cubells path are still closed, "in sections." However, residents celebrate the fact that they themselves have opened paths like the Can Lavilla path, which "had been closed for more than 50 years." "If the residents themselves don't defend it, we'll see what the future holds," argue neighborhood sources.