A right of way is a particular easement, i.e. a right, annexed to land, to travel over other land of different ownership in a particular manner.
Property rights are extremely important to most people so it is not surprising that people would avoid trespassing intentionally on another’s property. But there may be occasions where neighbours are aware that they have to accommodate each other and the situation necessitates creation of an easement. Obviously we can be overly territorial regarding our property and are aware that allowing right of way to neighbours may cause some tension. It is comforting to know that laws are in place to regulate how easements are to be observed. This can help to avoid potential conflict with neighbours.
While an easement or right of way grants rights, it also partially restricts a landowner’s use of that part of the land affected by the easement or right of way. In other words an easement is a right which is taken from one property and attached to another. It is a contract made between parties to give an individual, a company, a council or other authority (grantee) the right to use a landowner’s property (grantor) for a particular purpose.
The grantor who continues to own the land has essentially only given up certain rights on that part of land which is used for the easement. The grantee is permitted access to the easement and holds certain rights regarding usage of the property which would be described in the easement document. The rights of use are described and can be restricted by the terms agreed to.
The landowner has the right to refuse to grant an easement or right of way over their property. However a statutory authority may acquire an easement without the landowner’s consent.
If the landowner agrees to an easement over their property, a solicitor will prepare the appropriate documentation that will be lodged with the Lands Titles Office. Once granted and registered, the landowner cannot refuse the grantee his or her use of the easement.
Easements can be created between the grantee and grantor for the following:
- Pathways or walkways
- Right to park a vehicle
- Supply of electricity
- Sewer and water mains
- Supply of gas
- Access Roads