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Rights of way: Is my neighbour required to be a good neighbour?

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Civil and commercial litigation

Joe from Ste-Sophie asked us the following question: “I own a piece of vacant land. Now I want to build on it. The problem is that I currently have no access to the road. My neighbour has been letting me drive through his driveway. When I told him that I planned to build, he said right away that he would not let me use his road to bring in the construction vehicles, materials and workers. Does my neighbour have an obligation to give me access to my land through his land?”

In Quebec, owners of enclosed lands are entitled to request and obtain a right of way from a neighbour in order to access a public road. The owner of a land enclosed by that of others in such a way that there is no access or only an inadequate, difficult or impassable access to it from the public road may, if all his neighbours refuse to grant him a servitude or another mode of access, require one of them to provide him with a necessary right of way to use and exploit his land.

A right of way is claimed from the owner whose land affords the most natural way out, taking into consideration the condition of the place, the benefit to the enclosed land and the inconvenience caused by the right of way to the land on which it will be exercised.

Joe’s neighbour, who may be required to grant the right of way, will have a right to be compensated in proportion to any damage that he might suffer due to having to provide a right of way to Joe’s land.

Furthermore, it will be Joe’s obligation to build and maintain all the works necessary to ensure that his right of way is exercised under conditions that cause the least possible damage to his neighbour’s land.

Furthermore, in the future, the right of way may possibly be terminated if it ceases to be necessary for the use and the exploitation of Joe’s land. Any indemnity already paid by Joe his neighbour will be entitled to keep, but he will no longer be able to collect future payments. So, for example, if the province or the municipality expropriates land to build another road that does give access to Joe’s land, then Joe will no longer have a right of way on his neighbour’s land.

Whether by judgment or by agreement, a servitude can be prepared and published in the land registry to publicize a newly established right of way.

While, in general, it is recommended that neighbours should attempt to be good neighbours, where they are not always good neighbours, the law provides remedies in order to obtain a necessary right of way.

This article contains legal information of a general nature. For your specific questions about your particular situation, you should consult the lawyer or notary of your choice.

Franco Tamburro, Attorney-at-Law
Alepin Gauthier Avocats Inc.

 

Rights of way: Is my neighbour required to be a good neighbour?
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