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Streets / roads Street ownership: fee simple deed or use by right-of-way - issues, plusses, and minuses?


Dear Leader
Staff member
Yea, that's a long thread title.

Anyhow, let me explain. I haven't really had to think about this much until now, but in New York State (and many other states), "public" roads aren't necessarily owned by the underlying municipality, county, or state. Most public streets/roads have one of these two types of ownership

* Fee simple deed: the underlying municipality, county, or state has a deed to the road right-of-way, and actually owns the road. In this case, a property owner conveyed the road right-of-way to the government.

* Use by right-of-way: adjacent property owners own the road up to the center line. In this case, a property owner dedicated road right-of-way to the government, but didn't necessarily convey ownership. Subdivision plats, tax maps, property surveys, and metes-and-bounds legal descriptions will still show the road right-of-way as separate and distinct, but in reality it's just a fancy easement.

I'm not including private streets -- roads owned and maintained by an HOA or private entity, that aren't necessarily public rights-of-way, even if they're on their own legal lot. (I also won't get into adverse possession, perscription, or implied ownership. I won't even touch the idea of ancient roads, rangeways, or more arcane forms of right-of-way.)

For the FBC I wrote, street ownership may be either (1) public right-of-way with a fee simple deed; or (2) straight-up private, with HOA or neighborhood association ownership. (Private streets must still the same design and engineering/construction standards as for public roads, be open and un-gated, and allow public passage in the same way as a public right-of-way.) There's no in-between use-by-right-of-way streets.

It turns out in the community where I work, there's a lot of use by right-of-way roads -- public, but not really. This is becoming an issue now because of 5G. Use by right-of-way complicates the idea of a master agreement for use of the public right-of-way, because technically we really don't own the land those rights-of-way occupy. Other cities and towns in the area don't seem to have same issue.

So, aside from the 5G thing, are there any other disadvantages to dedicated use-by-right-of-way roads over conveyed fee simple ownership roads? Are there any advantages?


I’d be interested in understanding how the use-by-right is legally established and what the language described is typically granted to the municipality. It sounds exactly as you mentioned, a fancy easement.

The muni may run their own utilities (water, stormwater, and/or trash for example) — did the use-by-right that presumably has language addressing the use is for roadway purposes, also ensure utility purposes? For private utilities like typically cable or gas that the muni extends a franchise agreement in more typical road right-of-way, in these use-by-right examples does a franchise agreement in road right-of-way also automatically extend to use-by-right? Municipal broadband start ups are big in our state does this need to negotiated?

it would be interesting to see if homeowners can technically proliferate the roadway/parkway they technically own with campaign signs. Or if Traffic Code doesn’t apply and police cannot issue the same type of moving/speeding/inoperable vehicle violations in use-by-right.

Does the muni have a presumably reduced prioritization for roadway maintenance, needing to prioritize streets they own as right-of-way?

On the zoning side, any metric such as setbacks being measured from property line would be different— perhaps not an issue with a FBC?