Right of Way: Understand Your Legal Options


Questioner

This is a question about right of way. There are three plots involved. Our plot (A), the neighboring plot (B) and the adjacent plot (C) The back garden of our plot (A) can only be reached via an alley from the neighbouring plot (B). Plot (A) has no right of way, but there is a gate. The owner of neighbouring plot (B) has given the owner of plot (A) a right of way that is not transferable to new owners of plot (A). Plot (C) also uses the alley of plot (A). Plot (C) has a right of way. The establishment of an easement is described as follows: '.., the easement of footpath, which includes the obligation for the owner of the servient property to tolerate the owner or user of the dominant property driving small vehicles by hand... etc.' In this case, (C) is the dominant inheritance and (B) is the passive inheritance. Now there is a simple possibility that the alley to (B) can be reached via plot (C). The owners of (C) do want to give a perpetual right of way to (A). Whereby (A) becomes the dominant property and (C) the passive. The question is: are the future owners of (A) also allowed to use the alley on plot (B)? In other words, is everyone who is on plot (C) a 'user' as described in the establishment of the easement? So also the persons who cross from plot (A) to plot (C) and vice versa? I'd love to hear it!

Lawyer

I believe that in this case 'user' should be interpreted restrictively, as it includes tenants and family members of the principal owner, but does not include visitors to the dominant property.

Lawyer

Even if A has a right of way at the expense of C, A will still need to have a right of way at the expense of B in order to reach A. You write that B is not prepared to establish this (only wants to grant a personal right of use in favour of A). The fact that A can obtain a right of way at the expense of C does not make A a user of the plot of land C as intended in the sense of 'owner or user of the dominant property'. B does not have to allow such an increase in the burden of an easement.

Questioner

Thanks for the clear explanation. I am surprised that the 'user' has to be interpreted narrowly and that visitors to the dominant property are not included. It is now the case that the dominant property has a Bed & Breakfast where visitors approach the space via the passive property. In the explanation I understand that the suffering inheritance (B) does not actually have to allow this. Interesting, because I think the idea prevails here that (B) should allow that. By the way, I want to emphasize that there is no question of A, B or C. For me it is purely an interest in what is legally allowed or not.

Lawyer

A change of use of the dominant property (from residential home to B&B) is, as Mr Kleijwegt already indicated, an increase in the burden of the easement; the beneficiary of the servient property does not indeed have to accept this.

Questioner

André and Jan Paul, thanks for the answers, great website!

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