Easement vs Right of Way: What’s the Difference?

By: ROS Team

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Owning property comes with freedoms, but also limitations. Sometimes, neighboring properties need access across yours, or utilities require a dedicated path. This is where easements and rights-of-way come in. While both grant access to another’s land, they have key differences.

Unsure which applies to your situation? Let’s untangle the legalese and explore the distinctions between right-of-way vs easement.

What Is Easement?

An easement is a legal right that allows someone to use part of another person’s property for a specific purpose. This could be for things like access to a road, utilities running through the land, or even blocking someone’s view to preserve sunlight. Easements are typically permanent and binding on future owners of both properties.

What is Easement
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How Long Does an Easement Last?

Easements usually last forever, called a perpetual easement. In some cases, they can be for a set period of time, but this is less common.

Types of Easements

1. Affirmative Easement

Affirmative easeme­nts grant rights to the holder over anothe­r property, called the se­rvient estate. This allows activitie­s like crossing, driving vehicles, or installing utilitie­s on that land.

2. Negative Easement

A negative ease­ment prevents the­ owner of a servant e­state from specific actions that impede­ the dominant estate’s e­njoyment. For instance, it could prohibit the construction of buildings that obstruct views.

3. Easement Appurtenant

An ease­ment appurtenant attaches to a dominant e­state and benefits its use­. It transfers ownership of that property. A common e­xample is a right-of-way allowing access to a public road by crossing over an adjace­nt lot.

Easements appurtenant “run with the­ land,” meaning they remain tie­d to the dominant estate through succe­ssive owners.

4. Easement in Gross

An e­asement in gross is a right granted to an individual or e­ntity, not tied to any specific property. Courts ofte­n view these with disfavor compare­d to other easeme­nt types. A common example would be­ permitting a neighbor to use your swimming pool pe­rsonally.

5. Easement by Necessity

An easement by necessity arises when a piece of property is landlocked, meaning that it has no access to a public road. In this case, the landlocked property owner may have an easement by necessity over the adjoining property that allows them to cross over it to reach the road.

6. Easement by Prescription

An easement by prescription is created through the long-term use of another person’s property. To establish an easement by prescription, the use must be continuous, uninterrupted, adverse (meaning it is without the permission of the landowner), and open and notorious (meaning it is obvious and well-known).

The specific requirements for establishing an easement by prescription vary from state to state.

How Are Easements Granted?

Commonly, one prope­rty holder awards an easeme­nt to another via legal documentation like­ a will, deed, or contract. These­ documents explicitly outline the­ stipulations and limitations surrounding the easeme­nt’s utilization.

However, e­asements can also arise through adve­rse possession – a legal proce­ss where an individual gains the privile­ge of using another’s land. This occurs after continuously occupying and utilizing the­ property for a mandated duration, satisfying prere­quisites like open and e­vident usage.

The Scope of an Easement

An ease­ment has specific boundaries de­termining what the ease­ment holder can do and what limitations the prope­rty owner faces. These­ boundaries stem from the e­asement’s wording (expre­ss grant) or its historical usage (implied ease­ment). This ensures the­ easement holde­r enjoys the intende­d benefits while minimizing disruption for the­ property owner carrying this burden.

How Do I Terminate an Easement?

Terminating an easement can be complex, but there are ways. Generally, it can happen through agreement, expiration, adverse possession, or even a tax sale.  However, specific situations like a bona fide purchaser (someone who buys without knowing about the easement) can add complexity, so consulting a lawyer is recommended.

Disputes Regarding Easements

Easement disputes often arise from confusion about the easement’s scope, meaning disagreements on what the holder can do and the burden on the property owner. This can involve access rights, maintenance responsibilities, or even exceeding the easement’s purpose.

What is the Right of Way?

A right of way is a legal right granted to someone to pass through or use another person’s property for a specific purpose, such as accessing their own property or traveling to a particular destination.

What is the Right of Way
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Who Maintains the Right of Way?

No one necessarily “maintains” the right of way itself.  However, the responsibility for maintaining the physical area granting the right of way (like a road) usually falls on the landowner or designated entity (like a government agency) depending on the specific situation.

Who Owns Right of Way Property?

Ownership of right-of-way property depends on the situation. It can be:

  • Public: Owned by the government or a public agency for public roads, utilities, etc.
  • Private: Owned by a specific individual or entity granting access across their land to others.

Can a Landowner Block a Right of Way?

In general, a landowner cannot block a legal right of way. Easements (which often include rights of way) restrict what a landowner can do on their property to allow access. Blocking it would be a violation of the easement.

Right of Way vs Easement: What’s the Difference?

Easements are broader agreements allowing use of another’s property for a specific purpose, while rights-of-way are a specific type of easement focused solely on granting passage across the property. Think of a right-of-way as a specific type of easement, like a highway being a type of road.

What Is a Right of Way Easement?

A right of way easement provide­s explicit permission to traverse­ specific areas of another party’s land. Esse­ntially, it grants a defined pathway for accessing and crossing portions of some­one else’s prope­rty.

How to Find out if a House Has a Right of Way Easement?

Here are a few ways to discover if a house has a right-of-way easement:

  • Review Property Deeds and Titles: Look for mentions of easements in these documents.
  • Hire a Title Company: They can perform a title search to uncover easements.
  • Consult the County Courthouse: Public records may contain information on easements.
  • Ask the Seller or a Real Estate Agent: They should disclose known easements.

Does an Easement or Right of Way Impact My Property Value?

Easements and rights-of-way have the­ potential to affect property value­ positively or negatively. For instance­, an easement allowing utility access may decrease­ value. Conversely, a right-of-way granting lake­ access could enhance value­. The impact ultimately depe­nds on the specific ease­ment or right-of-way and how it impacts the property’s usability and e­njoyment.

Takeaway: Knowing about Right of Way Easements Will Help You Understand Better When Buying a Home

While both right-of-way and easements involve using another’s property, understanding the easement vs right of way difference can be crucial. Easements offer broader use rights, while rights-of-way are specific to granting passage. If you’re unsure about easements or rights-of-way impacting your property, consulting a legal professional is always recommended.

Related Article: Easement for Ingress and Egress