What is a Right of Way?

29 October, 2021 | Duncan Lang

A right of way is best described as an easement that allows the owner of one property the right to pass and repass over a specified area of another person’s property. This access may be by foot, machinery, or vehicles and can also extend to domestic or, for rural property, farm animals. Right of ways are commonly used for driveways.

A right of way easement is listed on the certificate of title of the affected properties. For example, “Subject to a right of way over part marked A on Deposited Plan 12345 specified in Easement Certificate 678910” with the easement instrument listing who benefits from and who has the burden from the right of way.

Due to Auckland’s constant growth and an increasing demand for housing, right of ways are likely to become a lot more common, along with the disputes attached to them. Because of this, it is important to understand your rights and obligations and how or when they may apply.

Legislation – Which laws cover right of ways?

Right of way legislation is found under Schedule 5 of both the Land Transfer Regulations 2018 and the Property Law Act 2007. There are certain implied rights and obligations associated with right of ways and it is important to make sure you understand how they apply to your easement.

Disputes over right of ways

Right of way disputes can arise from disagreements over who should cover or fix damage done to a right of way. Disputes also arise if one neighbour is obstructing the right of way, preventing access. It is important to note, if the right of way is only partially obstructed and can still be used, this may not constitute a breach of implied rights.

Costs for repairs and maintenance

The Land Transfer Regulations assert that costs in relation to a right of way such as maintenance and general repairs are to be equally shared between all parties who utilise the right of way. The Property Law Act is more general in its wording, stating that each party must make a ‘reasonable contribution’ to these costs. If damage is caused by the acts of a single party, both pieces of legislation assert that the party responsible for the damage is solely liable for the costs of repair. It is important to review your title, easement instrument and the nature of any dispute to determine how the Act or Regulations may apply.

We suggest you seek advice from a property lawyer regarding your circumstances, who can discuss your situation and explore the best options to help resolve your matter.

Do you own a property with a right of way passing through it and need help understanding what this means for you? Contact our Property Law experts today to set up an appointment for further advice.

email Duncan
+64 9 837 6834

About the author

Duncan completed his LLB at Auckland University of Technology in 2020 and was admitted to the bar in 2021. Working in the property and commercial team, Duncan assists clients with property and commercial law matters including conveyancing, refinancing, and general
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