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.
In this hypothetical, Property A is the “dominant” property, and Property B is the “servient” property. The dominant property is the one with the rights over the other property, and the servient property is the property over which the dominant lot is served by the right-of-way. In our hypothetical, Property B serves Property A. Another legal word you might see is “appurtenant.” The right-of-way, or easement, in our hypothetical is tied to the land and is, therefore, appurtenant. It belongs to Property A and cannot be taken with the owners of Property A when they sell Property A. The right-of-way remains with Property A and can be used by the new owners.
Suppose the new owners of Property B aren’t happy with the fact that the owners of Property A are driving over Property B on the right-of-way. Tough luck. The owners of Property B were on record notice of the right-of-way when they bought Property B, and so they knew, or should have known had they done their due diligence, about the right-of-way. By “record notice,” I mean that the deed containing the right-of-way was recorded at the county Registry of Deeds. Any efforts of the owners of Property B to block the right-of-way will quickly run into a legal buzz saw. Even if the new owners of Property B took title by a deed that did not mention the right-of-way, the right-of-way almost certainly exists, as a title search would have revealed the existence of the right-of-way in a prior deed in Property B’s chain of title. You cannot get rid of a right-of-way simply by not referring to it in a subsequent deed.
So, rights-of-way are common. If you are considering buying a servient parcel, don’t be scared away simply by the existence of a right-of-way over your land, but do consider whether you will be bothered by your neighbor’s actual use of the right-of-way. If you are someone disposed to conflict, you will set yourself (and your neighbor) up for trouble, as neighbor-to-neighbor disputes are some of the most intractable, litigious disputes I handle.
In addition to being an owner at BCM, Jason is vice-chair of the New Hampshire Bar Association’s Ethics Committee and lives in Peterborough.
This article was originally published in The Monadnock Ledger-Transcript.