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Tread Carefully: 10 Considerations for Right of Way Agreements

Published:

May 25, 2015

Author(s):

• Doug Tupper, McInnes Cooper Alum

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We updated this publication on July 21, 2022.

Every party to a Right of Way has some idea of what that Right of Way is – but many times, those ideas are different. Failure to clarify what both parties actually intend at the time they create  the right can lead to a road  of lengthy, costly, and acrimonious disputes between the current or subsequent owners of the properties. A written Right of Way Agreement signed at the front end is a relatively easy way to avoid this. You just need to put your mind to the issues up front.

Right of Way Gone Wrong

A private Right of Way (sometimes called an “easement”) typically gives one land owner the right to cross or use another’s property, usually a road or pathway of some kind, to get to and from their land or other point. This right is usually given in the form of a deed, much like a deed to property. Every party to a Right of Way thinks they understand how the Right of Way can be used – but many times, each party’s understanding is very different.

Vague Deed. The deed granting a Right of Way is often vague, and doesn’t help clarify things. For example, the deed granting one person the right to use another person’s property will often say something like, “together with a Right of Way over the existing road to access and egress the [property]”, and any subsequent deed to the road say “subject to a Right of Way over the existing road”. Often, there’s no other written documentation giving further details about what the parties (the owner(s) and the user(s) of the Right of Way)  actually intended – and understood –  the Right of Way to mean.

Legal Result. This failure to clarify what the original parties intended when they created the Right of Way, can lead to a road of lengthy, costly, and acrimonious disputes between the current or subsequent owners of the property, and the people who think they have certain rights to use the Right of Way. Unfortunately, those disputes sometimes lead to lawsuits.  What could have been easily settled up front may now be left, years later, to a court to decide – and neither party might be happy with the result.

An Alternate Road

An alternate road: a well drafted Right of Way Agreement that carefully and completely sets out the intentions and expectations of both the person who granted the Right of Way and the intended user of it, signed by both at the time the Right of Way is granted, and binding on their heirs, successors, and assigns will benefit the original owner and user, and any subsequent owners and users.

The May 2022 decision of the N.S. Supreme Court in Halifax Regional Municipality v. Rhyno illustrates the value of a written Right of Way agreement. A property owner entered into an express, written Right of Way Agreement with the Municipality that, among other things, allowed the public to cross the property owner’s lands to access the public beach adjacent to their property. Mr. Rhyno subsequently purchased the property subject to the Right of Way. Mr. Rhyno attempted to prohibit public access across his property via a number of methods, including installing a locked gate at the top of the entrance of the pathway. The Municipality objected to Mr. Rhyno’s efforts to block the Right of Way, and ultimately went to Court to enforce the Right of Way Agreement. The Court ultimately ruled in the Municipality’s favour, confirming the public’s right to access the beach via this express Right of Way and ordering Mr. Rhyno to cease all efforts to block the Right of Way.

The specific issues owners and users should consider when drafting a Right of Way Agreement are different in every situation. Here are 10 basic considerations to get you started:

1. Location.Where exactly is the Right of Way? Is its location properly defined? What are its boundaries? How wide is it intended to be? Is a survey required?

2. Use & Purpose.What use can be made of the Right of Way? Is it for pedestrians only? Is it for cars only? Can it be used for trucks or heavy equipment? Can it be used for commercial purposes? Is the use of the Right of Way restricted to access to and from the user’s (that is, the person to whom the Right of Way is granted) land? Can the Right of Way be used, for example, to service, maintain, repair, renovate or construct existing or new buildings on their land? Can the property owner temporarily block the Right of Way for this purpose, and if so for how long?

3. Users.Can guests use the Right of Way? What about others, like contractors, clients, and delivery people? Can commercial vehicles intending to service/maintain the user’s land make use of the Right of Way?

4. Parking.Can anyone park on the Right of Way?  If so, when and for how long? Guests only?  Contractors?

5. Maintenance & Repair.Who’s responsible for maintaining and repairing the Right of Way?  Who’s responsible for routine maintenance, such as snow removal, pot hole repair, and mowing? Who decides when maintenance or repairs are required, and who’s responsible for paying for them?

6. Improvement.Can either party improve the Right of Way, such as by grading, paving or installing new drainage systems?  Who can decide when and what improvements are needed?  Who’s responsible for paying for any improvements?

7. Change.Can the use of the Right of Way be changed if there’s a change in the use of the land that the Right of Way benefits? Can either party increase the use of the Right of Way at any time?

8. Restrictions.Can either party restrict the use of the Right of Way by others? Can either party install a gate on the Right of Way?

9. Compensation.Who’s responsible if someone suffers loss, damage, or injury while using the Right of Way? Should one party be required to compensate the other if a user is harmed?

10. Termination. Can either party terminate the Right of Way in the future if it’s not used at all, or if it’s used in way that violates the Right of Way Agreement?

Please contact your McInnes Cooper lawyer or any member of our Real Estate Team @ McInnes Cooper or our Construction Law Team @ McInnes Cooper for help drafting a Right of Way Agreement or resolving a Right of Way dispute.

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