Statutory Right of Way on BC Property: What It Allows and Limits

You are reading a title and find a statutory right of way registered against your property. It may be for a utility line, a municipal pipe or a path for access. The natural questions are what the holder can do, what you can still do on your own land, and whether it will complicate a sale.

The short answer to most of those questions is that the wording of the registered document matters a great deal. This article explains the general rules and what stays open until you read the actual instrument.

This article covers the law of British Columbia.

What a statutory right of way is

A statutory right of way is an easement without a dominant tenement, meaning there is no neighbouring parcel that benefits. It exists for purposes needed to operate and maintain the grantee's undertaking, including a right to flood. Registration creates a charge on the land in favour of the grantee.

Not just anyone can hold one. The Land Title Act allows a statutory right of way to be granted in favour of:

• the Crown, a Crown corporation or agency
• municipalities, regional districts and certain other local bodies
• water users' communities and public utilities
• specified pulp, timber, mining, railway, smelting and pipeline corporations
• any other person the minister designates

What the holder can do and what you can build

The right exists for the purposes of the grantee's undertaking, and the terms of the registered document bind both the owner and the grantee. That is why two rights of way on two lots can look similar on title yet allow different things.

Whether you can build a shed, fence, driveway, pool or addition over or near the right of way depends on the wording of the document and on the holder's position. The title alone will not answer that. Get a copy of the registered instrument and have a lawyer read it, and consider asking the holder in writing before you build.

Where the right of way covers only part of the land, the registrar endorses only that portion. If it includes access rights over all of the land, it is registered against the whole property unless the applicant applies for two rights of way.

How it affects a sale

A statutory right of way does not disappear when the property is sold. Its terms bind and benefit the grantor, the grantee and their successors in title, unless a contrary intention appears. A buyer will take the land subject to it.

On the owner's side, the Land Title Act relieves a grantor of liability for breaches of the right-of-way covenants that occur after the grantor ceases to own the land.

For buyers, the practical point is to search title early, get the instrument and any plan, and understand the location and terms before removing subjects. See our article on searching title through the LTSA for how to order a copy.

One special case: a statutory right of way over Agricultural Land Reserve land, applied for since September 30, 2020, must include the prescribed notice form under s. 18.1(3) of the Agricultural Land Commission Act.

Changing or removing one

A person interested in the land may apply to the Supreme Court under Property Law Act s. 35 to modify or cancel an easement, a statutory right of way, or a restrictive or other covenant. The court may make the order if the application is not premature and one of these grounds applies:

• the charge is obsolete because of changes to the land or neighbourhood
• reasonable use of the land is impeded without practical benefit to others
• the benefited parties agreed
• the change will not injure the person entitled to the benefit
• the registered instrument is invalid, unenforceable or expired

The court may require the applicant to pay compensation to anyone damaged by the order, though not for an advantage that only benefits the burdened owner. Before ordering, it must direct inquiries to public authorities and notice to those who appear entitled to the benefit. The order binds all persons, and the registrar amends the records when the order is produced.

Many owners instead negotiate with the holder. Whether a holder will agree to move or release a right of way depends on the holder and the terms.

What to do next

• Order a current copy of the title and the registered right-of-way document.
• Mark the right of way on your survey or plan so you know where it runs.
• Check the document for what the holder may do and what the owner may not.
• Ask the holder before building near or over it.
• Speak with a lawyer before a sale, a renovation, or any application to change the charge.

Frequently asked questions