This really depends upon the terms of the right of way. Usually, the right of way will be noted in the title to your property or in a conveyance of the land that benefits from the right of way and the land which is burdened by the right of way. However, generally speaking, a right of way in its purest form is simply a right to pass and re-pass along the right of way. It does not allow you to stop and linger or park on the right of way. It is possible that the right of way can be limited to a right of way on foot or it could also be with vehicular access.
This may be set out in the conveyance or deed granting the right of way. If it is not, there is generally a limit on the number of times in a given period that a right of way can be used. However, the owner of the right of way can take Court action pleading excessive use but this is more likely to succeed if the mode of use has changed.
The conveyance or deed granting the right may set out who is to repair the right of way and whether any other parties are to contribute to thecost of the right of way. If the deed / conveyance is silent on this point, or the right of way is not set out in a deed but has been established by some other method, there is no obligation on either party to repair. However, either party (the landowner or the person with the right) can take steps to repair the right of way at their own cost. The only circumstance in which the landowner can be forced to repair the right of way is if the state of the right of way is such that the right of way is obstructed and the party benefitting from the right of way may have an action for nuisance/interference.
There are a number of ways in which a right of way can be created. The most common are an express grant by deed – in other words, when land is transferred or a lease granted, the transfer or lease can provide for the new owner to enjoy a right over the land retained by the seller or landlord. A right of way can also be agreed between two landowners in a Deed of Easement.
It is also possible to obtain a right of way by prescription. This is essentially where a person or people have exercised a right for a long period of time, without interference and as of right. In those circumstances, it is possible to establish a right of way even though no formal deed has created the right of way.
It is also possible for a right of way to be created by an implied grant. The rules relating to prescription and implied grants are very complicated. If you wish to try and establish a right of way, or someone is claiming a right of way over your land, you should seek legal advice so that you can obtain advice on the particular circumstances of your case in the light of these various rules.
A right of way is generally a path or strip of land over another person’s property.
We also have the answer to the two related ‘right of way’ questions:
How often can I use the right of way?
If I have a right of way over someone’s property, what am I entitled to do on that right of way?
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