Right of Way 101: Who Really Owns the Path Through Your Property?

Ever notice a strip of grass on the edge of your yard that your neighbor uses to reach the road? Or a gravel path cutting across your land that somehow isn’t really “yours” to block off? That’s likely a right of way, and it’s one of the more misunderstood corners of New Jersey property law.

A right of way is a type of easement. It gives someone other than the property owner the legal right to pass through, or over, a specific portion of land. It doesn’t transfer ownership. The land is still yours on paper. But your ability to fence it off, build on it, or stop someone from using it is limited by that right. Think of it less like a loan of property and more like a permanent guest who’s allowed to walk through your living room to get to the back door.

Where do these rights come from? Usually one of a few places. A right of way can be created by an express written agreement recorded with the deed. It can arise by necessity, such as when a landlocked parcel has no other way to reach a public road. It can also develop through long-term, continuous use, even without a formal document. New Jersey courts have recognized prescriptive easements when someone has used a path openly and consistently for years, regardless of whether anyone ever wrote it down.

Why This Matters More Than You Might Think

Buying a home without checking for rights of way is a little like signing a lease without reading the fine print. The consequences show up later, and they’re rarely convenient. Here’s what a right of way can actually affect:

• Your ability to build a fence, shed, pool, or addition on the affected portion of land
• The resale value and marketability of the property
• Your liability if someone is injured while using the right of way
• Future disputes with neighbors over the scope of permitted use

That last point trips people up constantly. A right of way granted decades ago for foot traffic doesn’t automatically expand to cover delivery trucks or a driveway for a new subdivision. Scope matters, and so does intent at the time the right was created.

Can a Right of Way Be Changed or Removed?

Sometimes, yes. Termination can happen through abandonment, where the holder of the right stops using it and shows clear intent to give it up. It can also happen through merger, when the same person ends up owning both properties involved. In other cases, the original agreement may specify an end date or a condition that, once met, closes the right of way for good. New Jersey’s Municipal Land Use Law also shapes how subdivisions, lot access, and related land use questions intersect with these rights, particularly when a property is being divided or redeveloped.

If a right of way is creating friction with a neighbor, or if you’ve found one buried in a title search before closing, it’s worth understanding your options before assuming the situation is permanent.

Talk to an Attorney Before You Sign Anything

Rights of way can complicate a purchase, a sale, or simply your day-to-day enjoyment of your own backyard. Whether you’re trying to establish one, challenge one, or just understand what you’re dealing with, our Summit land use attorneys at Dempsey, Dempsey & Sheehan can walk through the specifics with you. Contact us today to talk through your situation.

Source:

law.justia.com/codes/new-jersey/title-40/section-40-55d-1/