Lately I have been getting a lot of calls and emails about right-of-way issues from past clients and new clients. It is very common for a property to either benefit from or be subject to a right-of-way. A right-of-way is a legal right of access or crossing over land owned by someone else. A right-of-way is generally found in a recorded deed, but it can also be established, in certain circumstances, by usage.
Here is a common scenario involving two side-by-side properties, otherwise known as “abutting” properties. Property A has a right-of-way over Property B. The deed to Property A states that the property itself is being conveyed (i.e., sold or transferred) along with the right to pass over the land of Property B for ingress and egress (i.e., coming and going) to Property A. The deed language might refer to the right-of-way as an easement over Property B. The deed to Property B states that the property is “subject to” the right-of-way of Property A. The right-of-way may have first been created when a larger property was subdivided, thereby creating Properties A and B, and, in order for the owners of Property A to access their property from a town road, they would need to cut through Property B.
Questions often arise about how the right-of-way may be used. A right-of-way for the ingress and egress to a residential lot may generally be used for all uses ordinary to a residential use. Assuming the right-of-way is the only, or at least the primary, access way to Property A, the owners of Property A may install utilities along the road. This probably includes underground utilities, such as water pipes, and above-ground utilities such as poles carrying electric, telephone, and cable wires. Also included in an ingress/egress residential right-of-way is the right to maintain the right-of-way, which may include paving the right-of-way if desired.