A Matter of Land | Who has the right of way?

Good day readers, today we deal with a question from the public concerning a land matter they would like some advice on.

Below is the question and response.

Q: Good day Mr Francis

I have a situation between me and my neighbour and I would like some advice on the matter.

I live on a piece of land that does not directly touch the road. I gain access to my property via a right of way through my neighbour’s property that actually touches the main road.

The neighbour and I were very good friends; however, the relationship has soured between my family and hers, which has brought some problems that I did not anticipate when I was encouraged to buy the property by my friend and neighbour.

They are now trying to limit my access through the right of way. They won’t allow me to drive my car on it or park my car there or improve the surface so that I may access my home with my car easily. They are saying it’s still their land and I need permission to do anything on it and I have to abide by what decision they make concerning its use.

Please advise me, as currently I have to park on the main road and walk to my house and this is very inconvenient and unsafe. Please note, Mr Francis, that the right of way is shown on both my title and my neighbor’s and has been so since the first title issued in 1968.

I look forward to your response.

Regards,

Annoyed land owner

A: Good day ‘Annoyed land owner’. I can understand the level of annoyance and inconvenience you must be going through now.

First, let’s look at what a right of way is:

RIGHT OF WAY

This is not a reserved road or a private road; it is, however, a prescriptive easement that gives access to a property or properties. The property over which the right of way runs still legally belongs to the owner.

A right of way is a type of easement, which is defined generally as a right granted to one person/party to use the land of another person/party for a non-exclusive purpose(s).

For an easement to be created, the circumstance has to satisfy four particular criteria:

1. There must be separate holdings of land that can be described as a dominant and servient tenement; the dominant being the land which will benefit from the easement, and the servient the land which will bear the burden of the easement.

2. The dominant and servient tenements should not be held by the same person, or a person must have separate types of interest in both tenements.

3. The easement must benefit the land itself, and not the owner.

4. The right being conferred by the easement must be able to be defined or described in the subject matter of a grant. The thing about the right of way is that if unused for a long period, it can cease to exist, as the land over which it ran never changed ownership.

You are the dominant tenement, hence use of the right of way is yours and the servient tenement, who is your neighbor in this instance, is not able to stop you from using the right of way to access your property.

That said, you are able to improve the right of way to ensure that you are able to access your property in a manner that’s convenient and expedient to you. The neighbour, once his property is not being damaged, has no right to interfere with you accessing your property nor can he or she stipulate that you cannot park on or drive your car on said right of way. It is for your use for serving your property.

If the problem persists, I suggest you contact a commissioned land surveyor to establish the boundaries of the right of way and also to explain to the neighbor what a right of way means and entails, or you can contact an attorney.

I hope this was able to assist you in your quest for use of your right of way.

Please try to work things out with your neighour, as you both have to see each other often. I wish you all the best in getting your right of way.

Keep sending your questions and comments and let’s continue to explore A Matter Land. Until next time, traverse well.

Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. Email feedback to editorial@gleanerjm.com or amatterofland@gmail.com or Facebook page Precision Surveying Services