Can You Build on a Utility Right of Way in Alberta?

You want to build a garage, deck or fence, and your title search shows a utility right of way crossing the lot. The first question is whether it is a problem. The honest answer is that it depends on what the document says and who holds the right.

This article explains how rights of way work in Alberta, how to find yours, and the risks of building without checking. It is general information, not advice on your lot.

This article covers the law of Alberta.

What a utility right of way is

Where a registered owner grants the Crown or a corporation rights for specified purposes, such as utilities, pipelines or drainage, the instrument granting the right may be registered. The right runs with the land even if the grantee owns no benefited land.

In plain words, the utility company can keep its rights even after you sell, and you hold your land subject to what is endorsed on the title. You are bound by the right whether or not you were the owner who granted it.

Finding out what affects your lot

A land title shows easements and other registered interests. To search, you need a legal description, a LINC or a title number. You can use SPIN2, a registry agent, or ARLO. Copies of registered documents with 9-digit registration numbers can be obtained through SPIN2.

Do not stop at the title page. A title search reflects only what has been registered, and rights of way granted under Alberta law can bind land without being mentioned on the title. Ask a lawyer or the utility how to confirm whether other rights apply.

Also note that an easement cannot be acquired by long use. No right of access, use of light or other easement may be acquired by prescription, so an easement must be created by registered instrument or statute.

What you can build and when consent matters

There is no single list of what may be built on a right of way. The registered instrument is where the right is set out, so read it first. What the utility will accept for your project depends on the document's wording and your situation, so it is worth confirming with the utility and a lawyer. A fence or a removable structure may be treated differently from a garage or a permanent deck.

If you want to build within the area, get the utility's written consent before work starts. Where a structure already crosses a boundary or right, a registered encroachment agreement binds later owners as if it were an easement. Municipal bylaws and development permits are separate and also apply, and these are outside the Land Titles Act.

Risks of building over it

• Whether the utility could require a structure to be moved, and who would bear that cost, depends on the wording of your document, so confirm it with a lawyer before you build.
• A buyer's lawyer may raise the issue and delay or complicate a sale.
• Your insurer or lender may ask questions about structures over registered rights.
• Removing a right from title is not simple. A mortgaged or encumbered utility right of way cannot be surrendered without the mortgagee's or encumbrancee's consent; otherwise the grantee may surrender it by registered instrument.

For some easements, the Registrar must cancel the registration on production of a prescribed discharge signed by the registered owner of the dominant tenement, and an affected owner can apply for cancellation. Whether that is available for your right of way depends on its type and terms.

What to do next

• Get a current title search and the registered right of way document.
• Mark out where the right of way sits on your lot, using a survey if you have one.
• Contact the utility named in the document and ask for its requirements in writing.
• Check municipal bylaws and permit requirements with your municipality.
• Ask a lawyer about an encroachment agreement or discharge if your plans conflict with the right.

Frequently asked questions