A Right of Way is a right to use someone else’s land for the purpose of access.
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.
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.
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.
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:
In plainer English, a typical Right of Way would be:
The full and free right;
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.
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.
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.
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.
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.
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.
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.
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.
The particular wording of the Right of Way will determine who has the right of access.
The expense to record rights of way on the Title includes: