Home Buyer’s Guide To Right Of Way Easements
Kevin Graham5-minute read
November 30, 2021
A right of way easement can grant you access to your property when it’s not accessible without crossing over property held by someone else. It’s also important to be aware of your rights if a right of way passes through your land. We’ll go over this and other types of easements. But let’s start with the basics.
What Is A Right Of Way Easement?
An easement gives people or organizations the right to access and use your property in specific situations for a limited purpose. A right of way is a type of easement that establishes the freedom to use a pathway or road on another’s property without conferring ownership.
A right of way easement is very common. This is particularly true in rural areas where people often own vast tracts of land. Sometimes the only way to get to your property is to pass over someone else’s land. In this situation, a right of way easement is likely necessary.
Although we don’t always think about it, we encounter many easements in everyday life. For example, utility easements make repairs and meter reading possible. We’ll go over several types of easement later on in the article.
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Right Of Way Vs. Easement
All squares are rectangles, but not all rectangles are squares. In the same vein, all rights of way are easements, but not all easements are rights of way. Not every easement is about going across someone else’s property to get to your own.
Relevant Types Of Easements
In addition to rights of way, there are several other different types of easement. It’s even possible for an easement to fall into more than one of these categories depending on the reasoning and terms for the easement along with how universal the application is between you and your neighbors, for example.
An appurtenant easement – also referred to as easement appurtenant – occurs when two properties are linked together. The property benefiting from the easement, for example a path from the other property onto their own, is referred to as the dominant estate. The property providing the easement is known as the servient estate. It all sounds very medieval, but it’s true.
This type of easement could apply to everything from direct access to one property through another or even something as simple as letting a neighbor use your property as a shortcut.
Easement In Gross
Unlike an easement appurtenant, easements in gross aren’t tied to a property, but rather the person who is utilizing the easement at any given time. For example, utility workers have an easement in gross to complete maintenance and check meters.
A private easement is an agreement between two property owners giving the owner of one property the right to use another’s property for a specific purpose. For example, such an easement might be drawn up if a neighbor needs to run pipe under your property to get to their house. These may be freely granted or sold.
These differ from the public easements for things like getting to public parks or allowing for the installation of utilities because there has to be an agreement made. Public easements are done by the government and these rights of way don’t require express agreements.
An express easement is one that’s written down somewhere. It may be an agreement that’s written into a will or put in the deed somewhere. But the agreement is put in the record.
An implied easement is one that’s not written down, but it’s used by local custom. For example, if your property is the only path that children have to the bus stop, there may be a case for an implied easement to cross the property. It’s important to note that for an implied easement to have the full force of law, a judge must rule on it. It may not ever come to that.
Basically, for a prescriptive easement to apply, there has to be no agreement between the parties. The person making the claim has to have actual possession of the property. They have to use it openly for their purposes, retain exclusive control and possess the property continuously. If that happens, this may call for a formal prescriptive easement.
It’s important to note that this doesn’t have to result from something that many would consider a big deal. It’s often something as simple as a fence that’s partially on your property line or a garden box that has a similar scenario.
Right Of Way Easement Examples
Right of way easements are very common. Some of the most common examples may include the right for someone to cross another individual’s property to access their own. But it also includes rights for the electric or cable company to wire up the community across your property.
How To Find Out If A House Has A Right Of Way Easement
A title search will help uncover easements that aren’t implied or prescriptive in nature. The search will also uncover any other encumbrances, which refer to any limits on the use of your own property. For example, a common encumbrance is a lien requiring a payment of debt if the property is sold.
Sellers are required to disclose easements. However, it’s important to note that it’s normal for there to be easements on a property such as utility easements or even right of way agreements between homeowners.
Buying A House With A Right Of Way Easement: What You Should Know
Because right of way easements are common, they don’t often scuttle a transaction. However, buyers should absolutely know what they’re getting into and what the rights of the neighbors might be to their property. That way, they can make an informed decision on whether it’s something they want to deal with.
Additionally, because these easements can be an inconvenience, buyers may be able to use this in negotiations as a bargaining chip to get some seller concessions to help with closing costs.
Removing An Easement
Many things in life are open to negotiation, and easements can be one of them. If you need to have an easement removed, often the best way to go about it may be to speak with the easement holder and negotiate termination of the agreement.
If the landowner currently holding the easement doesn’t wish to negotiate, you have the option of taking the challenge to court, but this could be more costly and take time you may not have during the home buying process.
The Bottom Line: Understanding Right Of Way Easements Will Help You Move Forward With Clarity
Most homes that you purchase come with some type of easement, with right of way easements being among the most common. However, knowing which easements your home has can help you make an informed decision.
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