What Is a Right-of-Way in BC and Can You Block One?

You open your title search and find a right-of-way or easement registered against your property. It may be a utility line, a shared driveway, or a path for a neighbour. The question is what it lets other people do, and whether you can put up a gate or fence.

The answer depends heavily on the registered document itself. This article explains the general picture in British Columbia and why blocking a right-of-way without checking first can be an expensive mistake.

This article covers the law of British Columbia.

What a right-of-way or easement is

An easement or right-of-way is a right for someone else to use part of your land for a defined purpose, such as access or a pipe, without owning it. You still own the land, but your ownership is subject to that right.

An indefeasible title is conclusive evidence that the registered owner is entitled to the land, but it is subject to listed exceptions. These include a highway or public right of way, charges and notices on title, a lease of up to 3 years with actual occupation, and a right of expropriation under an Act. That is why a registered right-of-way binds you even if you did not think about it when you bought.

How these rights arise

How a particular right came to exist depends on its history, and how it affects your title depends on the registered document, so that document is the place to start. The wording matters: it sets who benefits, what they may do, and where. If you are unsure how a right fits with your title, it is worth confirming with a lawyer.

Long use alone does not create one. The Land Title Act abolished prescription and the doctrine of the lost modern grant, so a neighbour's years of using your strip do not create a prescriptive easement.

A court can also declare an easement in an encroachment case. Where a survey shows a building encroaches, or a fence encloses adjoining land, the Supreme Court may declare an easement for a period it sets, on payment of the compensation it determines.

Can you fence or block it?

There is no single answer. It depends on what the document allows, who holds the right, and what the blocking would interfere with. A locked gate across a shared driveway, for example, may defeat the purpose of the right, while a fence that leaves the permitted use unaffected may be fine.

• Read the registered document, not only the title search summary. It describes the purpose and the area.
• Check whether the right is private or a public right of way, which is a separate exception to your title.
• Check municipal bylaws for fence height, setback and permit rules, because those come from the municipality and vary.
• Ask the holder in writing, and get any agreement to a gate or relocation in writing too.

If you block a right-of-way, the holder may take the matter to court. What a court would order depends on the document and the facts, so get advice before you build.

Disputes, costs and time limits

The Civil Resolution Tribunal can take small claims up to $5,000, which may suit a modest money dispute such as shared upkeep costs. It cannot hear some land-related claims, including ending or dissolving an interest in land. Disputes about the right itself therefore usually need a lawyer's input about the proper court.

A court proceeding generally must not be commenced more than 2 years after the claim is discovered. A proceeding that seeks only a declaration is not covered by the Limitation Act. Because another enactment may set its own period, do not rely on a single deadline.

Maintenance can also raise access issues. Where a structure is close to a boundary, its owner may ask the Supreme Court for permission to enter adjoining land to make repairs if consent is refused or cannot reasonably be obtained, with the period and purpose set and compensation for damage.

What to do next

• Order a current title search and copies of every registered charge.
• Read the right-of-way document to see its purpose, location and who benefits.
• Get a survey if you are unsure where the right-of-way lies on the ground.
• Hold off on gates, fences, planters or paving across it until you know what is allowed.
• Talk to the holder, then speak with a BC real estate lawyer if you cannot agree.

Frequently asked questions