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WHAT IS IT? A statutory right of way is an easement 238 over a piece of property. Its name describes it precisely, that is, it is a right of way over land which is available under a statute, the Land Title Act. 239
The statutory rights of way which people are most familiar with are B.C. Hydro rights of way for transmission lines. However, it is also possible for conservation organizations who are designated under section 214 of the Land Title Act to hold statutory rights of way.
AN EXAMPLE. A small, reasonably good wetland existed on a parcel of property in northern British Columbia. Ducks Unlimited Canada identified that this area had the potential, with some work, to be developed into very high quality wetland habitat. Ducks Unlimited, with the landowner's permission, placed a dam containing a water control structure across the outlet. The result was 73 hectares of highly productive wetland habitat.
The landowner wanted to ensure that Ducks Unlimited retained the right to operate and do maintenance on these works. He cooperated with Ducks Unlimited in having a statutory right of way registered against his property. It guaranteed access to the property, plus the right to construct the works, store the water and carry out future management and maintenance.
POSSIBLE APPLICATIONS. A conservation organization that wanted to create a rural bicycle path might want to negotiate with local farmers to acquire a statutory right of way across their farms.
LEGAL BASIS. The basis for a statutory right of way is contained in section 214 of the Land Title Act. 240
The section sets out
A statutory right of way resembles a common law easement. Both tools permit someone who is not the owner of a piece of land to acquire the right to cross over the land. Both common law easements and statutory rights of way can run with the land and, therefore, bind future owners of the piece of property. 241 So, if a landowner grants a statutory easement in favour of Ducks Unlimited Canada, for example, to come onto his or her land and to do some activity, Ducks Unlimited would have the right to enter the land and carry out that activity even if the current landowner sells the land to someone else. 242
There are also differences between a common law easement and a statutory right of way. A statutory right of way does not require a dominant tenement. Common law easements, which give the easement holder the right to pass over the land subject to the easement, are available only if the easement holder has property adjoining the land over which the easement passes. 243 Common law easements are held by the neighbouring dominant tenement. Statutory rights of way can be held by anyone entitled to hold them under section 214.
This is a big advantage of a statutory right of way over a common law easement from the point of view of the conservation organization that is designated under section 214. Section 214 is designed to make it possible for the Crown, some public agencies, some industries, and "any other person designated by the Minister of Lands, Parks and Housing" to acquire a right of way across a parcel of land without being restricted by the requirements of common law easements.
If a conservation organization wants to be designated under section 214, it should contact the Ministry of Environment, Lands and Parks. 244 The Ministry will consider the status of the organization, its permanence, the purpose for which a designation is requested, and what will happen in the event that the organization were to cease to exist. The Ministry can issue a general designation. For example, Coast Islands Conservancy is entitled to hold a statutory right of way for purposes within its constitution. The Ministry can also issue designations limited to a specific project. Coast Islands Conservancy also is entitled to hold a statutory right of way for the specific purpose of developing a bicycle trail on Galiano Island.
Section 214 does not give those bodies a right to the right of way. They must still
acquire the right of way, either by purchase or donation from a landowner.
HOW IS IT CREATED? As discussed above, before a conservation organization can negotiate a statutory right of way with a landowner the organization must be designated by the Minister to hold the statutory right of way.
A statutory right of way is created in writing, specifying what rights the holder of the right of way has over the landowner's land. These might include
The statutory right of way is then registered in the land title office as a charge on the landowner's land. The land title office will register the statutory right of way if it says in the document that the statutory right of way is necessary for the operation of the conservation organization's business. 245
HOW LONG CAN IT LAST? A statutory right of way can last for as long as the parties want it to, even forever.
A statutory right of way runs with the land. This means that if a landowner grants a statutory right of way to a designated conservation organization, it stays in place even if the landowner sells the property. The purchaser would be bound by the statutory right of way.
WHO MONITORS AND MAINTAINS THE LAND? The document creating the statutory right of way should specify who, as between the landowner and the holder of the statutory right of way, is responsible for occupiers' liability on the portion of the land containing the right of way.
If the statutory right of way contains covenants restricting the activities of the landowner, the landowner must respect the covenants. The statutory right of way document may make the right of way holder, the owner, or both responsible for maintaining the portion of the property covered by the right of way. The landowner continues to own the land not covered by the statutory right of way and has the responsibility to maintain it.
HOW CAN THE LAND BE PROTECTED OVER TIME? The conservation organization has the right to enter onto and protect that portion of the land which is the subject of the statutory right of way. The statutory right of way may contain covenants governing what the private landowner can do with the land and the conservation organization can enforce those covenants if breached by the landowner.
HOW IS IT TERMINATED? The holder of a statutory right of way, such as one of the designated conservation organizations, can terminate a statutory right of way over a landowner's property by filing a release of the statutory right of way in the land title office.
The landowner cannot terminate a statutory right of way unilaterally, but may be able to have the court remove the statutory right of way under section 31 of the Property Law Act, if the court determines that
238. For a discussion of easements which are not created under a statute, see Chapter 15 on Easements.
239. Section 214 of the Land Title Act, R.S.B.C. 1979, c. 219 governs statutory rights of way.
240. Section 214 in its entirety provides:
214 (1) A person may and shall be deemed always to have been able to create, by grant or otherwise in favour of
(a) the Crown or a Crown corporation or agency;
(b) a municipality, a regional district, a local trust committee under the Islands Trust Act or a local improvement district;
(b.1) a water users' community, public utility, a pulp or timber, mining, railway or smelting corporation, or a corporation authorized to transport oil or gas, or both oil and gas, or solids, as defined in the Pipeline Act; or
(c) any other person designated by the Minister of Lands, Parks and Housing on terms and conditions he thinks proper, an easement, without a dominant tenement, to be known as a "statutory right of way" for any purpose necessary for the operation and maintenance of the grantee's undertaking, including a right to flood.
(2) To the extent necessary to give effect to subsection (1), the rule requiring an easement to have a dominant and servient tenement is abrogated.
(3) Registration of an instrument granting or otherwise creating a statutory right of way
(a) constitutes a charge on the land in favour of the grantee; and
(b) confers on the grantee the right to use the land charged in accordance with the terms of the instrument, and the terms, conditions and covenants expressed in the instrument are binding on and inure to the benefit of the grantor and grantee and their successors in title, unless a contrary intention appears.
(4) No person who executes an instrument in which a statutory right of way is created is liable for a breach of a covenant in the instrument occurring after he has ceased to be the owner of the land.
(5) This section is retroactive in its application and applies to all statutory rights of way, whenever created.
(6) A recital in a grant or reservation of a statutory right of way that it "is necessary for the operation and maintenance of the grantee's undertaking", or a statement to that effect in the application to register the statutory right of way, is sufficient proof to the registrar of that fact.
241. See Chapter 5, Everything You Always Wanted to Know about Land ...
242. See Land Title Act, R.S.B.C. 1979, c. 219, s. 214(3).
243. See Chapter 15 on Easements for a more detailed discussion of dominant and servient tenements.
244. Contact the Surveyor General Branch at the Ministry of Environment, Lands and Parks in Victoria.
245. See Land Title Act, R.S.B.C. 1979, c. 219, s. 214(6).
246. See Property Law Act, R.S.B.C. 1979, c. 340, s. 31.
