Utility Right-of-Ways
A Utility Right-of-Way is a portion of land owned by one property owner in which rights-of-access are granted to another. Many properties in Alberta have a Utility Right-of-Way (URW) on them. While there are good reasons for these to exist, recently, many municipalities have taken a more aggressive approach to enforcing the rights associated with these portions of the property. As a result of this rise in recent municipal enforcement, our clients are increasingly asking questions regarding utility right-of-ways: where they are, why they exist, and their impact on homeowners and real estate transactions.
What are Utility Right-of-Ways (URW)?
There is often a public need to install common infrastructure, such as cables, telephone poles, water, sewage, and natural gas, to service many homes in an area. In Alberta, the typical arrangement is to install utilities on private land. To accomplish this, a right-of-way agreement is registered on the land title for the property. This lays out what rights are created, who has these rights, and the location of these rights. The location can be defined in three ways: registered on a legal plan, written into a description on the title, or through a blanket registration on the entirety of the property. The following are examples and descriptions of each:
Registered on a Plan
The current standard, and most common way, to define the location of right-of-ways is through a plan registered by an Alberta Land Surveyor at the Alberta Land Titles office. This plan will graphically indicate the size and location of the right-of-way on the parcel.
Description on Title
The second way the location may be referenced, seen on older right-of-ways, is by a description on the title, such as “the south 25 feet” of the parcel.
Blanket Registration
The third way is used almost exclusively on rural properties with gas cooperatives and is known as a blanket registration. With a blanket registration, the entire parcel is subject to the right-of-way, and the rights allow access to the whole property regardless of the utility's location.
Where are they located?
The most common location and size for the right-of-way in new communities is the front 3.50 metres (11.5 feet) of a property. In older areas, 3.05 metres (10 feet) is common. Corner lots often have a smaller right-of-way running down the side of the parcel (property). We recommend that you check your land title to see if any right-of-ways exist before starting a project.
Why do they exist?
It should be made clear that the land subject to the right-of-way is still part of the parcel owned by the landowner. Despite this, the right-of-way grants others rights to some use of the land. Most utility right-of-ways limit rights to subsurface rights, but with stipulations on what can be built above. Namely, there are rights to install, upgrade, and maintain the services mentioned above. It’s important to note that the agreement may also state that structures will not be allowed to be built on the right-of-way area.
What is their impact on landowners?
The most common interaction, however, most people will have with right-of-ways is when they sell their home and require a Real Property Report (RPR.). An important aspect of utility right-of-ways to understand is that, from a land surveying / Real Property Report (RPR) perspective, the concern is where the legal right-of-way is located, not where the utility infrastructure is located. One current example of how these right-of-ways impact land owners is the recent push for internet service companies to upgrade their cable and telephone lines to fibre optic for increased service speeds; the right of the service provider to enter and do construction on private property is derived from the utility right-of-way document registered on the parcel.
It can also be the case that the utilities are installed outside the right-of-way, and a portion of the service is almost always branched off of the main line to service the building on the parcel. These ‘branches’ are not typically covered under the right-of-way agreement, as it is solely for the use of that particular land owner, not for the public as a whole accessing the service line. Such branches are not indicated on a Real Property Report or a registered plan. Therefore, knowing the location of the legal right-of-way is NOT a replacement for having the utilities located for excavation (e.g., installing fence posts, landscaping, etc.). If you need to know the locations of utilities for construction, please reach out to:
Click before you dig
or
Utility Safety Partners (Previously known as Alberta One Call).
How does this affect my Real Property Report (RPR) and possible real estate transactions?
It is a requirement of Real Property Reports (RPRs) to show all encroachments associated with a property. Encroachments are any structures that interfere with access to the right-of-way. Plant life or nonpermanent structures (e.g., patio furniture, movable planters, etc.) may not be shown. While an exhaustive list of structures that could be shown is impossible, the most common and most problematic are retaining walls, fences, permanent planters, and concrete.
The municipalities surrounding Calgary (Chestermere, Cochrane, Airdrie, etc.) have their own enforcement policies for encroachments. The City of Calgary now requires either an encroachment consent letter or an encroachment agreement for almost all encroachments. The typical total cost (including the Surveyor, City, and Land Titles fee, if needed) to have a surveyor process the needed approvals to allow the encroachments to remain ranges anywhere from $200 - $1,500.
The part our clients find most frustrating, however, is the significant timelines for processing such agreements. Due to the ever-changing bylaws and long timelines to process encroachment agreements, we recommend ordering an RPR before listing your property for sale. However, that was not a possibility for you, or there has been such a delay that the RPR will not be completed before closing, the likelihood of this causing your sale not to go through is low. Typically, the buyer's lawyer will require a holdback of funds until the final RPR is received.
A homeowner should consider the impact of the encroachments and evaluate options. It might make more sense to remove the offending encroachment. This is a conversation you should have with your lawyer and realtor. We are here to help you navigate these situations.