In the construction industry in India, the concept of the right of way refers to the legal right of a property owner or a construction company to access and use a particular area of land to build or develop infrastructure such as roads, bridges, railways, pipelines, etc. It is a crucial aspect of any construction project as it determines the boundaries and limits of the land where construction activities can take place.
Various laws and regulations at the national, state and local levels often govern the right of way in construction projects. These laws determine the conditions under which the right of way can be acquired, the compensation to be paid to the affected parties, and the procedures for resolving any disputes related to land use.
Given the complex legal and regulatory framework surrounding the right of way in construction projects in India, it is important for construction companies and property owners to clearly understand their legal rights and obligations when it comes to acquiring and using the land for their projects. It can help ensure that construction activities are carried out legally and sustainably while minimising the impact on the environment and the surrounding communities.
Right of way: Factors affecting it
Following are some major factors affecting the right of way:
1. Size of the formation
2. The embankment’s height
3. Side slopes
4. Drainage technique
5. Consideration of sight distances on horizontal curves
6. Future addition
How to acquire the right of way?
Acquiring the right of way in construction can be complex and time-consuming. Here are the general steps involved in acquiring the right of way:
Identify the needed right of way
The first step in acquiring the right of way is identifying the specific land or property needed for the construction project. It may involve surveying the area and determining the necessary right-of-way boundaries.
Determine the legal requirements
Depending on the location and nature of the construction project, there may be legal requirements that must be met to acquire the right of way. For example, the project may need permits or compliance with environmental regulations.
Determine the landowner(s)
The next step is determining who owns the land or property needed for the right of way. It may involve researching property records or working with a title company.
Negotiate with the landowner(s)
Once the landowner(s) have been identified, the next step is to negotiate with them to obtain the right of way. It may involve discussing the project’s goals and plans, explaining its benefits, and offering compensation to the landowner(s).
Reach an agreement
If the landowner(s) agree to the terms of the right of way, a formal agreement must be reached. It may involve drafting a legal document that outlines the specific terms of the right of way, such as the size and location of the right of way, the duration of the right of way, and the compensation to be paid to the landowner(s).
Obtain any necessary approvals
Additional approvals or permits may be needed to obtain the right of way, depending on the construction project’s location and nature. For example, the project may need approval from a local zoning board or environmental agency.
Record the right of way
Once the right of way has been obtained, it must be recorded with the appropriate government agency, such as the county recorder’s office. It ensures that the right of way is legally recognised and protects the project’s legal rights.
Right of way: Types
There are several different types of right of way that can be used in construction projects. Here are some of the most common types:
Easements
An easement is a legal right that allows someone to use a portion of another person’s property for a specific purpose, such as to construct a road, pathway or utility line. There are different easements, including “appurtenant” easements, which benefit a particular piece of land, and “in gross” easements, which benefit an individual or company.
Licences
A licence is a temporary right to use another person’s property for a specific purpose. Unlike easements, licences are revocable and do not confer any permanent property rights.
Permits
A permit is a temporary right to use public land for a specific purpose, such as construction, excavation or other activities. The government typically grants permits and may be subject to various conditions and restrictions.
Right-of-way agreements
This is a legal agreement between a landowner and a construction company, granting the company the right to use a portion of the land for a specific purpose. The terms of the agreement can vary depending on the specific needs of the construction project.
Dedication
This is a process in which a landowner dedicates a portion of their land for public use, such as constructing a road or utility line. The landowner does not receive compensation for the dedication but may be eligible for tax benefits.
Condemnation
This is a legal process by which the government can acquire private property for public use, such as constructing a highway or bridge. The landowner is typically compensated for the value of the property taken.
Right of way: Maintenance
Maintaining the right of way in construction is important to ensure the safety of the workers and the public and protect the integrity of the construction project. Here are some steps that can be taken to maintain the right of way during construction:
Establish a maintenance plan
A maintenance plan should be developed before construction begins. This plan should include specific procedures for maintaining the right of way during and after construction.
Inspect regularly
The right of way should be inspected regularly to identify potential hazards, such as loose debris, erosion, or damage to barriers or fencing.
Control access
Access to the right of way should be controlled to prevent unauthorised entry by the public or others. Fencing or other barriers can be used to restrict access.
Remove debris
Debris should be removed regularly from the right of way to prevent hazards to workers or the public.
Repair damage
Any damage to the right of way, such as erosion, damage to fencing, or damage to barriers, should be repaired as soon as possible to prevent further damage and ensure the safety of workers and the public.
Manage vegetation
Vegetation along the right of way should be managed to prevent overgrowth that could create hazards for workers or obstruct the view of drivers.
Maintain drainage
Drainage systems along the right of way should be maintained to prevent erosion, flooding, or other damage to the right of way.
Maintaining the right of way during construction requires a proactive approach to identifying and addressing potential hazards. Working with experienced professionals, such as construction managers or engineers, can help ensure that the right of way is properly maintained and that construction proceeds safely and efficiently.
