Schedule 5
Covenants implied in grants of vehicular rights of way

ss 297, 298

The grantor and the grantee of a vehicular right of way covenant with one another as follows:

1 Right to pass and re-pass
  • (1) The grantee and the grantor have (in common with one another) the right to go, pass, and re-pass over and along the land over which the right of way is granted.

    (2) That right to go, pass, and re-pass is exercisable at all times, by day and by night, and is exercisable with or without vehicles, machinery, and equipment of any kind.

    (3) In this clause, the grantee and the grantor include agents, contractors, employees, invitees, licensees, and tenants of the grantee or the grantor.

    Compare: 1952 No 51 s 126B, Schedule 9 cl 1

2 Right to establish and maintain driveway
  • The owners and occupiers of the land for the benefit of which, and the land over which, the right of way is granted have the following rights against one another:

    • (a) the right to establish a driveway on the land over which the right of way is granted, and to make necessary repairs to any existing driveway on it, and to carry out any necessary maintenance or upkeep, altering if necessary the state of that land; and

    • (b) any necessary rights of entry onto that land, with or without machinery, plant, and equipment; and

    • (c) the right to have that land at all times kept clear of obstructions, whether caused by parked vehicles, deposit of materials, or unreasonable impediment to the use and enjoyment of the driveway; and

    • (d) the right to a reasonable contribution towards the cost of establishment, maintenance, upkeep, and repair of the driveway to an appropriate standard; and

    • (e) the right to recover the cost of repairing any damage to the driveway made necessary by any deliberate or negligent act of a person bound by these covenants or that person’s agents, contractors, employees, invitees, licensees, or tenants.

    Compare: 1952 No 51 s 126B, Schedule 9 cl 2(a)–(d)

3 Right to have land restored after completion of work
  • (1) This clause applies to a person bound by these covenants (person A) if a person entitled to enforce these covenants (person B) has undertaken work, in accordance with the right conferred by clause 2(a) or with an order of a court, on the land over which a right of way is granted.

    (2) Person A has the right, after the completion of the work, to have the land restored as far as possible to its former condition (except for the existence of the driveway).

    (3) That right of person A is subject to person B’s right, in accordance with clause 2(d), to receive a reasonable contribution towards the cost of the work.

    Compare: 1952 No 51 s 126B, Schedule 9 cl 2(e)