What in legal terms is a right of way over property?

Asked by: Ms. Mireille Maggio  |  Last update: February 19, 2022
Score: 5/5 (52 votes)

Right of way is the right to pass over or through real property owned by someone else, usually based upon an easement; also, “right-of-way.” The right of way may specify the parameters of the easement or may be a general right to pass over or through, known as a floating easement.

Who owns right of way property?

A:An easement of right of way is a real right. When an easement of right of way is granted to another person, the rights of the property's owner are limited. An owner may not exercise some of his or her property rights for the benefit of the person who was granted the easement of right of way.

What is the law of right of way?

Simply put, Easement of right of way is an easement or a privilege by which one person or a particular class of persons is allowed to pass over another's land, usually through one particular path or line.

Can a landowner block a right of way?

If any person, including the owner of the land affected, interferes with the exercise of the easements (e.g. blocking the right-of-way or cutting service lines) the owner of the easement may take legal action for compensation or for a court order restraining interference with the easement.

What is the difference between right of way and right of access?

The main difference between a servitude and right of way is that a servitude can cover more than just access. If the servitude is granted in writing then in theory it could cover almost any act carried out over the granter's land.


15 related questions found

Can a Neighbour block a right of way?

A Any substantial interference with a right of way is a nuisance in common law. The owner of the right (known as the “dominant” owner) can apply to court for an injunction and damages if the landowner (or “servient” owner) blocks it.

Can I refuse my Neighbour access to my property?

A request for access may be refused if the court is satisfied that your neighbour would suffer unacceptable interference or disturbance in their use or enjoyment of their land or some other form of undue hardship.

What constitutes substantial interference of a right of way?

Any obstruction of a private right of way must be substantial to be actionable and there can be no substantial interference if, despite the obstruction the right of way can be “practically and substantially exercised as conveniently” as it was before.

Can you put a gate over a right of way?

It is well-established that a gate can be erected across a right of way (Pettey v Parsons (1914)) and such a gate can even have a lock (Johnstone v Holdway (1963)); the question for the court is whether the gate amounts to a substantial interference with the convenient use of the right of way compared with the ...

Can you gate off a right of way?

Many land owners ask the question whether they can put a gate across their land when a third party has a right of way over that land. ... A right of way could be by foot or vehicular access. Especially in relation to vehicular access there is no rule that a single unlocked gate is always ok.

Does my Neighbour have right of way through my garden?

Your tenant doesn't have the right to grant a right of way, but if the neighbour has being using your garden for long enough (probably in excess of 10 years but it will depend on the facts) and has been doing it openly (eg your tenant and everyone around can see him using the garden) then he could argue that he has ...

Is right of way can be sold?

A: No. Under Article 622 of the Civil Code, discontinuous easements, whether apparent or not, may be acquired only by title.

How do you know if a right of way exists?

How to know if a Right of Way exists on my land? If the right of way was created by agreement, there should be a paper trail showing it in your title documents. These may be held by your solicitor or mortgage provider.

Does a right of way expire?

Generally once an easement or right of way has arisen it will continue indefinitely unless it is extinguished or released. ... Once an easement or right of way is extinguished then it cannot be revived at a later date should both plots be separated and sold off to different purchasers.

What is a right of way easement?

More simply, an easement is the right to use another's property for a specific purpose. Rights-of-way are easements that specifically grant the holder the right to travel over another's property.

Is right of way free?

You must pay to acquire an easement of right of way. It is NOTfree!

How long does a right of way last if not used?

Generally once an easement or right of way has arisen it will continue indefinitely unless it is extinguished or released.

Is a gate an obstruction?

The legal test in the case of alleged obstructions, put simply, is: "can the right of way be substantially and practically exercised as conveniently as before?" The answer in most cases is that a single unlocked gate will not normally be held to be a substantial interference.

How wide should a right of way be?

Deeds will show if the right of way applies to those on foot or in vehicles. On foot permits one to pass and repass without lingering and the pathway should be no less than 90cm wide. Vehicular right of way allows vehicles of up to a permitted size along the carriageway or driveway, to load and unload but not to park.

Can visitors use a private right of way?

But a right of way will typically allow not only you to use it but also your visitors and agents. Depriving a visitor of access is, in a legal sense, the same as depriving you of access. Clearly it is not possible to issue a key to all those who may visit your property at some time in the future.

Can footings cross into a Neighbours land?

The foundation of your neighbour's extension can be built on your land if necessary. However, in practice, it is very rarely necessary for a foundation be built over the boundary. ... There is no right for your neighbour to put a reinforced concrete foundation on your land without your permission.

Can my Neighbour come onto my property?

Generally speaking, your neighbour should not go onto your land without your permission. There are some situations where they may be able to access your land in order to complete repairs to their property, and their right to do this may be set out in the title deeds for the home.

Does my Neighbour have right of access?

Generally, if you go onto your neighbour's land without their permission, you are trespassing. However, if you need to repair your home and to do so need access via your neighbour's land, you may go onto your neighbour's land without getting their permission.

What does a right of way allow you to do?

What is Right-of-Way? A right-of-way allows another individual to travel through your property. This benefits another person or another parcel of land you do not own. This grants access to anyone who may need to travel through your land.

How do you close a right of way?

Can a right of way be lost?
  1. The parties involved can expressly agree to extinguish the right by entering into a formal deed of release.
  2. The person with the benefit of the right can demonstrate by their actions that they intend to abandon it.