A Matter of Land | Private road, reserved road and a right of way
This week, we continue our look at some of the terms used regularly in land matters.
This is defined as a road or driveway on privately owned property, limited to the use of the owner or a group of owners who share the use and maintain the road without help from a government agency.
A private road has not been given to a government entity and accepted by that entity for public use. So a private road, as the name suggests, is one that is private and is constructed on your property for your personal use and enjoyment.
It is exclusively constructed on property owned by you and is to be maintained by you as your responsibility.
You are able to fence it off and you're not bound to allow access to anyone unless you so desire. So this road would be just a part of your property for your personal use and enjoyment.
This is a portion of land in a subdivision designated to be used as access to lots. A reserved road can be of varied width, depending on the developer and the approval given by the local authority. A reserved road is usually not less than 9.14 metres (30 feet) wide.
This road is not owned by any one person. The ownership is usually in the name of the developer, if it's a subdivision development, and/or in the name of the owner of the land from which the reservation is taken.
Despite this, no one owns the reserved road and, therefore, does not have sole right to use, access and enjoyment of it.
The reserved road is for use of all who would benefit from it as a means of access. Reserved roads may be shown on survey plans/diagram or subdivision plans but is not actually a 'road' on ground. This means the reservation may be made on the plan but not built on ground (no asphalt or hard surface applied). No one person can fence any section of the road to restrict any other person from using it.
Right of way
This is not a reserved road or a private road; it is, however, a prescriptive easement that gives access to a property or properties. The property over which the right of way runs still legally belongs to the owner.
A right of way is a type of easement, which is defined generally as a right granted to one person/party to use the land of another person/party for a non-exclusive purpose(s).
For an easement to be created the circumstance has to satisfy four particular criteria:
1. There must be separate holdings of land that can be described as a dominant and servient tenement; the dominant being the land which will benefit from the easement, and the servient the land which will bear the burden of the easement.
2. The dominant and servient tenements should not be held by the same person, or a person must have separate types of interest in both tenements.
3. The easement must benefit the land itself, and not the owner.
4. The right being conferred by the easement must be able to be defined or described in the subject matter of a grant. The thing about the right of way is that if unused for a long period it can cease to exist as the land over which it ran never changed ownership.
Keep sending your questions and comments and let's continue to explore A Matter of Land. Until next time, traverse well.
- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at email@example.com or Precision Surveying Services.