Understanding the concept of a right of way is crucial, whether you're considering buying the property of your dream or a cottage tucked away in a remote location.
A right of way can significantly impact your property rights, potentially limiting your land use if it runs through your property or safeguarding your access to public roads.
Let’s gain a deeper understanding of this intriguing aspect of the real estate world.
What is a right of way?
A right of way, also known as an easement, involves a legal arrangement where one property (the servient land) is constrained for the benefit of another property (the dominant land). Essentially, it permits the owner of the dominant land to access a public road through the land of another owner.
Requesting a right of way involves seeking permission from the neighbour whose property offers the most convenient access to the public road. The access is determined by various factors, including the length of the road needed to reach the property and the potential damage to the land being used for access.
Right of way and easement: what’s the difference?
These two terms refer to the same thing and are often used interchangeably! A right of way is a type of easement. However, it’s essential to note that not all easements are rights of way.
A legal right in Quebec
The right of way is indeed subject to precise and complex regulations. Once agreed upon by the involved parties, it must be officially registered in the Quebec Land Registry to be legally binding for all future property owners. This registration process typically requires the expertise of both a land surveyor and a notary.
If you've reached an agreement with your neighbour to use a road on their property but haven't registered the right of way in the Land Registry, it's crucial to understand that the arrangement only holds weight between the parties involved. If your neighbour sells their property, the new owner isn't obligated to uphold the driveway commitments unless the right of way has been properly registered.
The concept of landlocked property
According to the Ministère de la Justice du Québec, a right of way can be claimed when a property lacks access to a public road or when the existing access is impractical or insufficient, rendering the property landlocked.
For instance, if you purchase a cottage deep in the woods and find that it's inaccessible by car, you may seek permission from your neighbour to establish a right of way across their land to reach yours. However, in exchange for this privilege, you would typically be required to compensate the neighbour for any damage or inconvenience caused to their property.
How to properly establish a right of way?
To properly establish a right of way, you'll need to contact a land surveyor to determine the boundaries of the access road. Additionally, you must adhere to the legally permitted methods of establishment, draft a comprehensive and precise agreement, and have the document notarized to formalize the arrangement.
The 4 modes of establishment
A right-of-way servitude can be established in four distinct ways: by contract, through a will, via legal principles, or by the actions taken by the property owner.
-
Contracts can take various forms, including written, oral, or even tacit agreements. However, it's strongly advisable to have a written contract to prove the existence of the servitude and enforce it against third parties.
-
Establishment by will occurs when a testator imposes an easement on a property being bequeathed. For instance, if the testator divides a plot of land among multiple heirs and one of the lots lacks accesses to a public road, they may stipulate the right of way in the will.
-
Legal principles govern specific situations where a right of way is necessary, such as granting utility companies like Hydro-Québec access to their facilities by crossing a property.
-
A right of way may be established by the "destination of the owner." This occurs when an owner possesses multiple lots and plans for a servitude in the event of separating one of them. However, the easement is only formalized when the owner sells or transfers part of their land, as it requires two distinct owners for creation.
Drawing up the contract
If your neighbour agrees to grant you a right of way on their property, it's crucial to draft a comprehensive contract detailing the specifics of the arrangement. This contract should include:
- Designation of the land
- Designation of the beneficiary
- Duration of the right of way
- Ways of exercising the right of way
- Compensation from the beneficiary
By including all relevant information in the contract, you can minimize ambiguity and ensure that both parties understand their rights and obligations regarding the right of way.
Determining who can use it
In certain circumstances, it may be relevant to determine the use that may be made of the access route. This can involve setting limitations on usage frequency and hours, as well as identifying the types of vehicles allowed. For instance, the agreement might restrict access for large commercial trucks due to potential damage and noise concerns compared to standard cars.
Clearly outlining these details ensures all parties understand the permitted activities and restrictions associated with the access road.
Notarizing the document
In order to formally establish the terms of the right of way, a notary's involvement is necessary. They will draft the legal documents outlining the specifics of the right-of-way agreement. Once finalized, these documents need to be registered in the Land Register of Quebec. This registration ensures that all future property owners are informed about the existence of the right of way and are legally bound to adhere to its terms.
Can a right of way be denied?
Your neighbour is not required to accept your request, especially if the right of way isn't deemed essential or relevant. For instance, asking to use your neighbour's slip to launch your boat because you don't have one, or seeking a right of way simply to shorten your commute, are matters of convenience rather than necessity. In such cases, your neighbour has the right to refuse your request.
If you believe your request is legitimate but your neighbour denies it, you could take the matter to Superior Court to seek a resolution and potentially compel them to grant access.
A land surveyor can help demonstrate the relevance of the claimed right of way. Additionally, you may also wish to support your position with the expertise of a notary or lawyer, if necessary.
What are the rights and responsibilities associated with a right of way?
Once your neighbour has granted you an easement of right-of-way and the boundaries of the access road have been established by a surveyor, there are additional obligations that come into play.
Compensation
In accordance with the Civil Code of Quebec, when an owner obtains a right of way, they must compensate the owner granting it. If your neighbour agrees to grant you a right of way on their property, you will need to pay them the agreed-upon indemnity as discussed in prior negotiations.
What is the value of this compensation?
According to article 997, this compensation must be “proportional to the prejudice it may cause.” Several factors must be considered:
- Severance damage
- Damage to on-site improvements
- Loss of value of the affected property
- The value of the right of way
- Fees of experts consulted
Maintenance and work
If any construction or alterations are necessary to enable your vehicle to pass over your neighbour's property, you are responsible for the design, installation, and maintenance of these fittings and structures.
It's also essential to ensure that the access road minimizes any adverse impact, such as damage or breakage, on your neighbour's property.
All costs associated with these works are your responsibility, although they may be shared among all parties benefiting from the right of way if agreed upon.
Additionally, the owner of the servient land must be informed in advance of any planned work to allow them to prepare and mitigate any potential inconvenience.
Moving the access road
The owner of the servient land must respect your right to use the easement. They are prohibited from taking any actions that would diminish or restrict your use of the easement.
While a right of way is typically established in a fixed location, the owner of the land has the option to relocate the access road. However, any such relocation must be done at their own expense, and the new location must offer the same level of convenience as the previous one.
Return to original condition
Depending on your agreement with the owner of the servient land, you may be required to restore the property to its original condition once the right of way comes to an end.
When does a right of way end?
A right of way can be terminated under various circumstances:
- The right of way is no longer necessary for the use of the land it provides access to.
- The contractual term of the right of way agreement expires.
- The holder of the right of way voluntarily renounces it.
- The owner of the affected land repurchases the right of way.
- The same person becomes the owner of both the land with the right of way and the land affected by it.
Additionally, if the beneficiary of the right of way fails to use it for a specified period, typically 10 years, the right of way may be considered null. For instance, if a right of way intended for vehicular traffic is only utilized by pedestrians for 10 years, the beneficiary could lose authorization to use it for vehicular purposes.
Are you looking for a land surveyor to establish a right of way?
XpertSource.com can help you find a land surveyor. When you tell us about your project, we put you in touch with qualified resources for FREE. Simply fill out our form ( it only takes a few minutes ) and we will connect you with professionals.
