Rights of Way - rights and responsiblities

2 August 2015

Sam and Tina share a common driveway because the land along Tina’s boundary with the road is steep. The shared driveway is recorded as a right of way easement registered against the titles to Sam’s land and Tina’s land. The driveway has become damaged by trucks which have been using it to access Tina’s land.

Sam wants to know who is responsible for repair of the right of way. In order to answer Sam’s question it is necessary to search the document creating the easement (called an “easement instrument”) registered against the titles to the land. The easement instrument for this right of way states that the terms of the right of way are found in the 4th Schedule to the Land Transfer Regulations 2002 and the 5th Schedule to the Property Law Act 2007. Not all easements contain these terms. In each case it is necessary to search the specific document creating the easement to find out its terms.

Easements and the 4th Schedule standard terms

An easement is the right to use someone else’s land for a particular purpose. The 4th Schedule to the Land Transfer Regulations sets out the standard terms that apply to easements of right of way, rights to convey and drain water, rights to drain sewage and rights to convey electricity, telecommunications, computer media and gas created from 2002 onwards. These standard terms can be varied in the easement instrument to suit the circumstances.

For a right of way easement, the standard terms provide that the owner of the right of way land and the person who has the right to use the right of way (usually the adjoining owner) have the following rights:

- At all times, to go over and along the easement area with vehicles, machinery, implements or, in the case of rural land, animals.
- To establish a driveway, and to repair and maintain an existing driveway
- To have the right of way kept clear at all times of obstructions.

The standard terms also provide that, where the use is shared by the owner of the right of way land and other users, they are equally responsible for repair and maintenance costs.

However, if repair or maintenance is necessary because of the actions of one of the users, then that user must pay the costs. The user responsible for repair or maintenance has the right to enter and remain on the land to enable the work to be done. He or she must carry out the work promptly in a proper manner and restore the land to its former condition. The standard terms set out a process to follow if there is a dispute.

Vehicular rights of way and the 5th Schedule

The 5th Schedule to the Property Law Act sets out the rights and responsibilities of those people with the right to use vehicular rights of way (including the owner of the right of way land). The rights of use are similar to those given under the 4th Schedule standard terms. However, there are some differences with respect to responsibility for the cost of establishment, repair and maintenance. Because of this difference, easement instruments usually state that 5th Schedule will prevail if there is a difference.

The first step

In Sam’s case, if Tina has been responsible for the need for maintenance then she will be responsible for undertaking the work and paying the costs. The first step for Sam to take is to talk to Tina and ask her to do the work. If that doesn’t work Sam will need to see his lawyer for advice on how to comply with the easement instrument to make sure Tina does the work she is legally bound to do.

Barbara McDermott is part of our Private Client team at Norris Ward McKinnon.