What Is a Statutory Right of Way on British Columbia Land?

You may have found a statutory right of way on a title while buying a home, or learned about one when planning a fence, a garage or an addition. It can be unsettling to see someone else's right noted against land you own or want to own.

This article explains what a statutory right of way is, who can hold one, how it carries over to new owners, and how it is different from other charges. For what you can build, the registered document itself is the starting point.

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, for purposes needed to operate and maintain the grantee's undertaking, including a right to flood. In plain words, it gives a particular body a right to use part of your land for its operations, even though that body does not own a neighbouring parcel that benefits.

Registration creates a charge on the land in favour of the grantee. Its terms bind and benefit the grantor, the grantee and their successors in title, unless a contrary intention appears. That means a new owner takes the land subject to the right of way.

Who can hold one

Under Land Title Act s. 218(1), a statutory right of way may be granted in favour of the following:

• 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.

So if the title names a utility, a municipality or a pipeline company, that is typically who you would deal with about the right of way.

What it covers and what you can build

The size and shape of the right of way depends on the registration. If it 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.

What you may build on or near it depends on the wording of the registered document, which sets out the grantee's rights and any limits on your use. A fence, shed, driveway or landscaping may be fine, restricted or require consent, so obtain the document and read it before you plan or build. A lawyer can help you interpret it.

There is a special rule for farmland. 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.

Once you sell, the Act relieves the grantor of liability for breaches of the right-of-way covenants that occur after the grantor ceases to own the land.

How it differs from other charges

A section 219 covenant cannot be discharged by the landowner alone. It may be modified by the holder and the landowner together, or discharged by the holder alone. A right of way and a covenant can both appear on the same title, so read each one.

Can it be changed or removed?

The simplest route is usually to talk to the holder. Beyond that, a person interested in land may apply to the Supreme Court to modify or cancel an easement, a statutory right of way, or a restrictive or other covenant burdening the land under Property Law Act s. 35(1).

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, but 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 on production of the order.

What to do next

• Order a copy of the title, which shows the charges, liens and interests registered against the property, and look for the right of way among them.
• Obtain the registered document and read the grantee's rights and any limits.
• Mark the right of way on a copy of your plan before designing any structure.
• Contact the holder before you build near it.
• Talk to a lawyer if you want to change the right of way or if a purchase depends on it.

Frequently asked questions