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Right-of-Way Agreement

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A right-of-way agreement is the legal right of a property owner or construction business to access and utilize a section of land for essential infrastructure. It is an evaluative component of any construction project which establishes boundaries and regulates property access for construction operations. Rights-of-way are legal easements that grant individuals or entities the right to access and pass through another person's property. Let us take a look at the blog below to understand further.

Types of Right-of-Way Agreements

There are four types of right-of-way agreements. To understand these, let us look at the pointers mentioned below:

  • Appurtenant Right-of-Way Agreement: It is defined as a legal restriction on a property that grants another property the right to utilize it for a particular purpose. When a property is sold, the easement must go with it. Appurtenance is a part of both properties rather than being reserved for a certain group of individuals. Instead of specific people, the property retains the right to that easement.
  • Gross Right-of-Way Agreement: This enables access to the property without the advantages of ownership. This implies that a certain person is granted the right to use the land rather than the actual property.
  • Express Right-of-Way Agreement: This type of agreement is recorded in writing. For example, it could be a clause included in a will or a deed.
  • Implied Right-of-Way Agreement: It is based on local customs but is not explicitly documented. For instance, there may be a basis for an implied easement to cross your property if it is the only route that kids have to the bus stop. It's important to remember that a judge must rule on an implied easement for it to have complete legal standing.

Elements to Consider for Drafting a Right-of-Way Agreement

A right-to-way agreement has several elements that should be considered while drafting. These elements are mentioned below:

  • Identifying the Parties: The agreement should specifically name the parties involved, including the landowner, also known as the grantor, who is granted the right-of-way, and the person or company, the grantee, who can use the property.
  • Including Detailed Description: A full description of the property includes boundaries, measurements, and any particular places or features that are pertinent to the agreement, and it should be included in the agreement.
  • Specifying Purpose and Scope: The agreement should outline the intended use of the right-of-way, whether for utilities, access, or other purposes. Additionally, it should outline the right-of-way boundaries and any usage constraints or restrictions.
  • Outlining Location and Route: The agreement should outline the precise location and travel path of the right-of-way, together with any access points, roads, trails, or other information required to define the permitted passage.
  • Mentioning Term and Termination: It should also state the circumstances under which the right-of-way may end, such as failure to uphold the terms of the contract or passing of a predetermined time frame. Whether the right-of-way is temporary or permanent shall also be mentioned.
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Steps to Secure a Right-of-Way Agreement

A right-of-way agreement is not achieved without noting the necessary procedure. The steps vital to obtaining a right-of-way agreement are mentioned below:

  1. Locate Property: Finding the ideal land or property required for the project is the first stage of obtaining the right-of-way.
  2. Identify the Applicable Legal Requirements: There could be legal requirements that must be satisfied to obtain the right-of-way, depending on the location and type of your project. For example, the project might need to adhere to environmental regulations or secure the required approvals.
  3. Name the Owners: The next step is determining who owns the land or other property needed for the right-of-way.
  4. Negotiate the Deal: Negotiating with the landowner to secure the right-of-way is the next stage after the landowners’ have been located. It can entail outlining the project's objectives and intentions, highlighting its advantages, and compensating the landowner.
  5. Make a Decision: A formal agreement must be made if the landowners consent to the right-of-way conditions. It can include drafting a legal agreement specifying the right-of-way particulars, including its length and location and the amount of compensation to be paid to the landowner or landowners.
  6. Obtain Required Authorization: Depending on the location and type of the building project, additional approvals or licenses can be required to secure the right-of-way. For instance, a municipal zoning authority or environmental organization may need to approve the proposal.
  7. Register the Agreement: The next step includes registration. It must be registered with the relevant government office, such as the county recorder's office. In addition to defending the project's legal rights, it ensures the law recognizes the right-of-way.
  8. Include Maintenance and Repair: The agreement should specify who is responsible for keeping the right-of-way in good condition, including any upkeep, landscaping, or improvement commitments. It might also describe how the expenses for various activities are divided up.
  9. Address Indemnification and Liability Clauses: The agreement should have clauses addressing indemnification and liability, outlining each party's obligations for any losses, harms, or damages that might result from the right-of-way.
  10. State Compensation and Consideration: In some circumstances, the right-of-way owner may demand payment or other compensation for giving access. The terms of such compensation, including the sum, frequency, and mode of payment, should be expressly stated in the agreement.
  11. Incorporate Rights and Restriction Provisions: Any rights and restrictions connected to the right-of-way, such as any usage restrictions, permitted uses, or particular conditions set by the grantor, should be described in the agreement.

Right-of-Way Agreement vs. Easement

Do you know if your deed has a right-of-way or an easement? If that's the case, it can restrict your capacity to work on privately owned property. Easements and rights of way are two examples of property rights granting people access to your land.

An easement is a mutually agreed-upon land use by a person other than the property owner. This agreement permits access to land for purposes such as creating necessary utility pipelines, developing natural resources, or constructing and maintaining. Easements may be advantageous depending on their intended use. On the other hand, a right-of-way agreement permits someone else to pass through your land. This helps someone else or a piece of property that you do not own. This gives everyone who has to pass through your territory access.

Key Terms for Right-of-Way Agreements

  • Grantor: The property owner who grants the right to use it is the grantor.
  • Grantee: The person, business, or governmental body granted the right to use the property.
  • Easement Holder: The person who benefits from the right-of-way agreement and is frequently in charge of maintaining the property's infrastructure.
  • Licenses: A license is a short-term authorization to use someone else's property for a certain purpose. In contrast to easements, licenses are revocable and do not confer any permanent property rights.
  • Permits: A permit is a short-term right to use public property for a certain activity, such as building, digging, or other activities. Government agencies typically grant permits, which may be subject to various conditions and restrictions.

Final Thoughts on Right-of-Way Agreements

In the USA, right-of-way agreements are important for the growth of the infrastructure and the efficient operation of both public and private projects. Landowners, developers, and other interested parties can negotiate the legal and practical aspects of granting or receiving rights to use someone else's property by being familiar with the fundamentals of these arrangements.

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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.


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