Table of contents
Send an email to the author

Everything you need to know about a right of way

#Real estate in Quebec

Last update : 2023-05-15 13:09:20

You've found the property of your dreams, but it's subject to a right of way? You've just bought a cottage in the middle of nowhere with no access to public roads? In either case, the right of way constitutes a central issue in real estate projects.

It is very important to understand what this type of right of way is, as it can limit your property rights when it is located on your land or guarantee you access to the public road. Read the rest of this article to learn more.

What is a right of way?

A right of way (or easement) is a charge imposed on one property (the servient land) for the benefit of another property (the dominant land). Essentially, it allows one owner to access the public road through the land of a second owner.

The right of way must be requested from the neighbour whose land offers the easiest access to the public road. This ease of access depends, amongst other things, on the length of the road that will be required to reach the property and the damage that will be caused to the land being used.

The right of way is governed by precise and sometimes complex rules. Once accepted by the parties involved, it must be published in the Quebec Land Registry to be valid with all future owners. To do this, the expertise of a land surveyor and that of a notary are absolutely necessary.

Have you entered into an agreement with your neighbour to use a road on their land, but the right of way has not been published in the Land Registry? You should note that if your neighbour sells their home, the new buyer will not be obligated to maintain their driveway commitments. An unpublished right of way only affects the parties who signed the contract.

A house with a right of way

In what situations can a right of way be requested?

According to the Ministère de la Justice du Québec, a right of way can be claimed when a property has no access to the public road or when this access is impracticable or insufficient. The property is then said to be landlocked.

For example, if you buy a cottage in the middle of the forest and you are unable to reach it by car, you could ask your neighbour to grant you a right of way on their land to reach yours. In exchange, you will have to pay an indemnity proportional to the damage suffered by the servient land.

If your neighbour agrees to offer you a right of way on their property, you will need to contact a land surveyor to establish the limits of the access road. You will also need to jointly contract the description of the right of way. This contract must contain:

  • The designation of the land on which the right of way is exercised;
  • The designation of the person who will benefit from the servitude;
  • The duration of the right of way granted;
  • Ways of exercising the right of way;
  • The compensation to be paid by the beneficiary.

Depending on the situation, it may be relevant to determine the use that may be made of the access route. Are there any limits to the frequency and hours of use? Which type(s) of vehicles can drive through it? For example, a large commercial truck will likely cause more damage to the path and be louder than a standard car.

A notary will have to intervene to officially establish the terms of the right of way and then publish it in the Land Register of Quebec. This publication will allow all future owners to be aware of the existence of this right of way and to comply with it.

Woman authorizing a right of way by her signature

Can a right of way be denied?

Your neighbour is not required to accept your request, especially in a situation where the right of way would not be deemed relevant or necessary.

For example, asking for access to your neighbour's slip to launch your boat because you don't have one, or attempting to obtain a right of way just to reduce the distance you have to travel, are both situations that are more of a convenience than a necessity. The owner could then refuse your request.

If you believe that your request is legitimate, but your neighbour refuses it, you could go to Superior Court to try to win your case and force them to grant you access. A land surveyor will be helpful in demonstrating the relevance of the right of way claimed. You may also wish to support your position with the expertise of a notary or lawyer, if necessary.

Duties and obligations related to a right of way

The easement of right of way implies obligations for the person who wishes to use it. Once your request for a right of way has been accepted by your neighbour and the limits of the access road have been determined by a surveyor, further steps are required.

You will first have to pay the owner the compensation agreed upon in your previous discussions. If any work is required, you will have to pay for the entire cost of making the necessary adjustments to allow your vehicle to drive through your neighbour's property.

You will then need to maintain the driveway and ensure that it has the least negative impact (breakage, damage, etc.) on your neighbour's property.

The owner of the land on which the right of way is exercised must respect your right. Under no circumstances may they take any action that would diminish or limit the use of the right of way. The owner may, however, relocate the location of the driveway, provided that it is done at the owner's expense and that the new location is as convenient as the previous one.

Finally, depending on the agreement with the owner of the right of way, you may be required to restore the property to its original condition when the right of way expires.

A right of way

Termination of the right of way

A right of way may be terminated in several situations. In particular, this will be the case if:

  • The right of way is no longer essential to the use of the land to which it gives access;
  • The term of the contract expires;
  • The holder of the right of way waives this right;
  • The owner of the land affected by the right of way buys back the right;
  • The same person becomes the owner of the land affected by the right of way.

You should also note that a right of way that is not used as such by the beneficiary for a period of 10 years will be deemed to be time-barred. This is the case, for example, if the driveway granted for vehicular traffic was used only for pedestrian use for 10 years. The right of way would become time-barred, and the holder would lose their right to drive on it.

Are you looking for a land surveyor?

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.

Do you want to be put in touch with real estate professionals and get quotes? Contact us at 1 833 203-7768



Find the professional you need

Find your real estate professional by filling out the short form

Fill out this short form

By submitting your project, you agree to our Terms of Use


Find a great professional for your needs - it's free and easy !