Every party to a Right of Way has some idea of what that Right of Way is – but many times, those ideas are different. This failure to clarify what both parties actually intended can be a road to lengthy, costly, and acrimonious disputes between the current or subsequent owners of the road, and people who think they have certain rights to use the Right of Way. 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 typically gives one land owner the right to use another’s property, usually a road of some kind, to get to and from her land. 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 she understands how the Right of Way can be used – but many times, each party’s understanding is very different.

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 road 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.

This failure to clarify what both parties mean can be a road to lengthy, costly, and acrimonious disputes between the current or subsequent owners of the road, and people who think they have certain rights to use the Right of Way, about what the original parties to it actually intended.  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 may be happy with the result.

An Alternate Road

An alternate road: a well drafted Right of Way Agreement – one 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 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? For cars only? What about trucks or heavy equipment? 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 her land? Can they 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 paying to snowplow  it? 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?  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 anytime?
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?

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Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Real Estate Team or our Construction Law Team to discuss this topic or any other legal issue.

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McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

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