Every party to a Right of Way has some idea of what that Right
of Way is – but many times, those ideas are different. This
failure to clarify what both parties actually intended can be a
road to lengthy, costly, and acrimonious disputes between the
current or subsequent owners of the road, and people who think they
have certain rights to use the Right of Way. A written Right of Way
Agreement signed at the front end is a relatively easy way to avoid
this. You just need to put your mind to the issues up front.
Right of Way Gone Wrong
A private Right of Way typically gives one land owner the right
to use another's property, usually a road of some kind, to get
to and from her land. This right is usually given in the form of a
deed, much like a deed to property. Every party to a Right of Way
thinks she understands how the Right of Way can be used – but
many times, each party's understanding is very different.
The deed granting a Right of Way is often vague, and doesn't
help clarify things. For example, the deed granting one person the
right to use another person's road will often say something
like, "together with a Right of Way over the existing road to
access and egress the [property]", and any subsequent deed to
the road say "subject to a Right of Way over the existing
road". Often, there's no other written documentation
giving further details about what the parties (the owner(s) and the
user(s) of the Right of Way) actually intended – and
understood – the right of way to mean.
This failure to clarify what both parties mean can be a road to
lengthy, costly, and acrimonious disputes between the current or
subsequent owners of the road, and people who think they have
certain rights to use the Right of Way, about what the original
parties to it actually intended. Unfortunately, those disputes
sometimes lead to lawsuits. What could have been easily settled up
front may now be left, years later, to a court to decide –
and neither party may be happy with the result.
An Alternate Road
An alternate road: a well drafted Right of Way Agreement –
one that carefully and completely sets out the intentions and
expectations of both the person who granted the Right of Way and
the intended user of it, signed by both at the time the Right of
Way is granted and binding on their heirs, successors, and assigns
– will benefit the original owner and user, and any
subsequent owners and users.
The specific issues owners and users should consider when
drafting a Right of Way Agreement are different in every situation.
Here are 10 basic considerations to get you started:
exactly is the Right of Way? Is its location properly defined? What
are its boundaries? How wide is it intended to be? Is a survey
Use & Purpose.
What use can be made of the Right of Way? Is it for pedestrians
only? For cars only? What about trucks or heavy equipment? Is the
use of the Right of Way restricted to access to and from the
user's (that is, the person to whom the Right of Way is
granted) land? Can the Right of Way be used, for example, to
service, maintain, repair, renovate or construct existing or new
buildings on her land? Can they temporarily block the Right of Way
for this purpose, and if so for how long?
Users. Can guests
use the Right of Way? What about others, like contractors, clients,
and delivery people? Can commercial vehicles intending to
service/maintain the user's land make use of the Right of
Parking. Can anyone
park on the Right of Way? If so, when and for how long? Guests
Repair. Who's responsible for maintaining and
repairing the Right of Way? Who's responsible for paying to
snowplow it? Who decides when maintenance or repairs are required,
and who's responsible for paying for them?
either party improve the Right of Way, such as by grading, paving
or installing new drainage systems? Who can decide when and what
improvements? Who's responsible for paying for any
Change. Can the use
of the Right of Way be changed if there's a change in the use
of the land that the Right of Way benefits? Can either party
increase the use of the Right of Way at anytime?
either party restrict the use of the Right of Way by others? Can
either party install a gate on the Right of Way?
Who's responsible if someone suffers loss, damage, or injury
while using the Right of Way? Should one party be required to
compensate the other if a user is harmed?
either party terminate the Right of Way in the future if it's
not used at all, or if it's used in way that violates the Right
of Way Agreement?
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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