Statutory Right of Way on a BC Property: What Owners Should Know

You have looked at your title and found a statutory right of way registered against it, perhaps in favour of a utility or the municipality. It is natural to wonder what it lets others do and what it means for your plans.

This article explains the basics in British Columbia. The exact limits on what you can do depend on the wording of the registered document, so that document is the first thing to read.

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. It is 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.

In plain terms, it gives a body such as a utility a registered right over part of your land without that body needing to own neighbouring land that benefits.

Who can hold one

A statutory right of way may be granted in favour of these holders:

• 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 it means for you as the owner

The terms bind and benefit the grantor, the grantee and their successors in title, unless a contrary intention appears. That means a buyer takes the land subject to it, and a seller's obligations do not simply disappear on sale. A grantor is relieved of liability for breaches of the right-of-way covenants that occur after the grantor ceases to own the land.

If 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.

Whether you can build, plant or pave over the area depends on the registered terms and the holder's requirements. Do not assume a structure is allowed. Ask the holder and have a lawyer review the document first.

For land in the Agricultural Land Reserve, a right of way applied for since September 30, 2020 must include the prescribed notice form under s. 18.1(3) of the Agricultural Land Commission Act.

Can it be removed or changed?

A person interested in land may apply to the Supreme Court to modify or cancel a statutory right of way. The court may make the order if the application is not premature and a ground applies. Examples are that the charge is obsolete because of changes to the land or neighbourhood, that reasonable use of the land is impeded without practical benefit to others, that the benefited parties agreed, or that the registered instrument is invalid, unenforceable or expired.

The court may require the applicant to pay compensation to anyone damaged by the order. Before ordering, it must direct inquiries to public authorities and notice to those who appear entitled to the benefit. A court application is not quick, so many owners first try to reach an agreement with the holder.

What to do next

• Order a copy of your title and the registered right-of-way document.
• Read what the grantee may do, and where on the land.
• Check the right of way against your building or landscaping plans before you spend money.
• Contact the holder, such as the utility or municipality, to discuss your plans.
• Speak with a lawyer if you want it changed, or if a sale depends on it.

Frequently asked questions