Rights of Way

What is a Right of Way?

A Right of Way is a right to use someone else’s land for the purpose of access. 

Can Rights of Way pass automatically with land?

Usually, rights of way are created to burden one piece of land for the benefit of another piece of land. Where the owner of one piece of land has the right to carry out activities on another piece of land this is called an easement.

If registered with the title deeds, the rights will pass automatically to future owners.

The rights of ownership of the land benefited by the Right of Way include not only the right to use that land, but also to use the burdened land for the purpose of the Right of Way.

Must Rights of Way always be recorded on the title deed?

A Right of Way may still be legally binding even though it is not registered on the title deed.

Like any other agreement to do with land, a Right of Way agreement is ordinarily not binding unless it is in writing. A written agreement binds the parties who have knowledge of it.

Because of this greater clarity and certainty, long-term Rights of Way are usually recorded on the title deed. 

If a Right of Way is not recorded on the title deed, someone could buy land without knowing about the Right of Way and thus buy the land free of the Right of Way.

Rights of Way are more certain if recorded on the title deed because all parties are treated as having knowledge of them. As properties change hands, the Right of Way provisions automatically carry forward regardless of actual knowledge.

Can Rights of Way be created otherwise than by agreement?

Where a right of access is used for many years without approval, the owner of the land being used may lose the right to complain. 

The trespassing person exercising that access might then in the long run get the right to keep on having access regardless of the wishes of the owner. 

The Supreme Court has power to create an easement, licence or other right to facilitate the reasonable use of land for public or private purposes consistent with the public interest, provided the owner of the burdened land can be adequately compensated in money for any loss or disadvantage from operation of the order.

Is there a standard form of Right of Way?

There is a standard form of Right of Way created by the Conveyancing Law of Property Act. The Act defines the words “right of carriageway” as follows:

• Full and free right for every person who is at any time entitled to an estate or interest in possession in the land herein indicated as the dominant tenement or any part thereof with which the right shall be capable of enjoyment, and every person authorized by him, to go, pass, and repass at all times and for all purposes with or without animals or vehicles or both to and from the said dominant tenement or any such part thereof.

In plainer English, a typical Right of Way would be:

          The full and free right;

• to go pass and repass,
• for every person who is at any time entitled to an estate or interest in possession in the benefited land or any part of the benefited land with which the right shall be capable of enjoyment and every person authorised by him at all times for all purposes,
• with or without animals or vehicles or both,
• for the purpose of access to and from the benefited land or any part of the benefited land,
• but not for the purpose of access to land other the benefited land via the benefited land.
• The burdened party may place such gates across the roadway as are reasonable.

Does the standard form of Right of Way include power and water rights?

The document creating the right needs to be examined carefully before the limits of the Right of Way are known. 

The standard form of Right of Way expressed as “a right of carriageway” does not include rights to install and use power and water lines.

If such rights are needed, they should be specified separately. 

Who owns the land burdened by the Right of Way?

The owner of the adjoining property owns the land itself.  

The person who has the benefit of the Right of Way has the right to pass across it but is not the owner of the Right of Way land itself.  

Who must/can maintain the road formation of a Right of Way?

Both the owner of the property and the person with the right of access have the right to undertake maintenance. Their maintenance must not unreasonably interfere with the rights of the other party.

Unless there is special agreement, the mere existence of a Right of Way does not oblige any party to maintain a road formation. Neither the landowner nor the person exercising access over the land is obliged to maintain the road formation unless there is some special agreement otherwise.

Who is liable for the condition of the road if there was some injury?

Any party careless in the use or maintenance of the road may be held responsible for damage caused under negligence. The mere failure to take action is unlikely in itself to give rise to a responsibility unless there are some other circumstances that create an obligation to act.

Is a person responsible for damage they cause by the use of the road?

Damage by fair wear and tear to the road formation would not create an obligation to repair, subject to some contrary agreement. 

A party might become responsible to repair because an incident causes damage beyond fair wear and tear.

Use over many years and gradual deterioration are not likely to give rise to an obligation to repair. By contrast, if one party ran bulldozer tracks over the road formation, they may be responsible for the consequential damage.

Must the Right of Way be fenced off?

The person who has the benefit of the Right of Way does not own the land itself, so the rules of fencing between neighbours do not apply on the Right of Way edges unless otherwise the parties are neighbours. 

The owner of the land has the right to fence off the Right of Way, subject to not unreasonably impeding access to the Right of Way itself.

Can there be any obstruction of the Right of Way?

The owner of the land can still use the Right of Way as long as there in no substantial obstruction of the right of access.

The right to pass is not absolute and unlimited, but to access as reasonable and without substantial interference.

What is “reasonable” or “substantial” depends on the facts and ultimately, if a matter is litigated, a judgment by the court.

Can a gate be put across a Right of Way?

Subject to the specific wording of the Right of Way, the property owner can place gates across rights of way if that is reasonable in all of the circumstances. 

This right may include a right to have a lock across the gate. The person entitled to access would be entitled to a key. The gate and key arrangements are subject to a reasonableness test. 

Who has the benefit of a Right of Way?

The particular wording of the Right of Way will determine who has the right of access. 

Typically:

• the owner of the land and everyone authorised by that landowner has the benefit of the right of access;
• the owner of the property crossed by the Right of Way cannot restrict who is authorised by the benefited owner;
• the access is for a particular block of land and that block of land must be the destination of the party using the right of access, rather than some third block of land.

What does it cost to create a Right of Way?

The expense to record rights of way on the Title includes:

• about $350 in tax at the Land Registry;
• stamp duty (State Government transfer tax) about 3% to 5% of any market value of the right;
• fees for every lawyer that needs to be involved; and
• fees each for every lending institution that needs to be involved.