Common use of Right-of-Way Agreements Clause in Contracts

Right-of-Way Agreements. Once a route plan has been determined from the survey information, the company will send a licensed land agent to begin negotiations for an easement or right-of-way. In the right-of-way agreement, the landowner is considered the “grantor” and, as such, remains the owner and retains all rights that were not yielded to the “grantee” (company). The easement or right-of-way agreement will be registered as a caveat against the landowner’s Certificate of Title. The company may use the standard right-of-way agreement from the Canadian Association of Petroleum Landmen (CAPL) in Appendix D, but they are not required to do so. They may use their own document or modify the CAPL agreement to suit their interests. Similarly, landowners also have the right to propose revisions to the agreement to suit their needs and interests. The FAO strongly urges landowners to capture all commitments in writing in the right-of-way agreement, as it can be difficult to hold a company accountable to verbal commitments. Capturing commitments in a construction report is not sufficient; any commitments need to be reflected in the right-of-way agreement. Landowners are encouraged to thoroughly review a proposed right-of-way agreement to ensure each clause is understood. Most agreements will be designed by the company with their needs in mind. A landowner may wish to secure legal counsel to review the document to ensure their needs are being met. The landowner can request that the cost for legal review be covered by the company. The landowner must be given a minimum of 48 hours undisturbed to review a proposed agreement, though they can choose to waive this right in writing as described in the Land Agents Licensing Act. A landowner who negotiates an agreement after November 2013 can submit a copy of their easement or right-of-way to the AER’s Private Surface Agreements Registry (PSAR). This option is not available to orders granted by the Surface Rights Board (SRB) or commitments made to adjacent landowners or in a construction report. When an agreement is registered in the PSAR, the landowner can make a request to the AER under section 64 of the Responsible Energy Development Act if they feel a condition is not being adhered to. In this process, the AER can make a determination on whether or not the company has complied with the terms and conditions of the agreement. If it is determined that a term or condition is not being followed, the AER can issue an Order to Comply in response to the section 64 request. If it is determined that the company has complied with the agreement, the AER will not issue an order. The AER encourages landowners to contact the company first to try and resolve issues directly prior to using the section 64 process. If you have questions about the PSAR, please contact the AER at 1-855-297-8311.1 For utility pipeline right-of-way agreements, a landowner can contact the Alberta Utilities Commission (AUC) if they believe the company has failed to comply with a term or condition of the agreement. The AUC’s Consumer Relations Team can be contacted by phone at 780-427- 4903 (for toll free access dial 000-0000 first) or by email at xxxxxxxx-xxxxxxxxx@xxx.xx.xx. From there, the inquiry may be sent the Market Oversight and Enforcement Division for investigation.