Right of way easements: A home buyer's guide

A right of way easement can grant you access to your property if it’s not accessible without crossing over property belonging to someone else. It’s also important to be aware of your rights if a right of way passes through your land.

Let’s take a few moments now to become familiar with right of way easements as well as other types of easements you might encounter after buying a house.

What is a right of way easement?

An easement gives people or organizations the right to access and use another person’s 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 someone else’s property, without conferring ownership.

An easement right of way 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.

Easements are actually seen often in everyday life, even if most people don’t realize it. For example, utility easements make repairs and meter reading possible.

Easement vs. right of way

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 involves going across someone else’s property to get to your own.

Right of way easement example

Right of way easements aren’t at all rare. One example would be a situation where you have the right to cross another person’s property to access your own. Or, maybe an electric or cable company has the right to wire up the community that shares your property.

Other relevant types of easements

In addition to rights of way, several other types of easements may come into play. It’s even possible for an easement to fall into multiple categories depending on the reasoning and terms for the easement and how universal the application is between you and your neighbors.

Let’s take a look at a few other types of easements:

• Appurtenant easement: Also referred to as easement appurtenant, this type occurs when two properties are linked together. The property benefiting from the easement – for example, the property that has a path from the other property onto it – is referred to as the dominant estate. The property providing the easement is known as the servient estate.
• Easement in gross: Easements in gross aren’t tied to a property, but rather the person who’s utilizing the easement at any given time. For example, utility workers have an easement in gross to complete maintenance and check meters.
• Private easement: An agreement between two property owners, a private easement gives the owner of one property the right to use another’s property for a specific purpose. For example, this kind of easement might be drawn up if a neighbor needs to run a pipe under your property to get to their house. These easements may be freely granted or sold.
• Express easement: An express easement is one that’s written down somewhere. It may be an agreement that’s written into a will or included in a deed. But the agreement is put in the record.
• Implied easement: An implied easement isn’t written down, but it’s used based on 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. Generally speaking, a judge must rule on it, but it also may not ever come to that.
• Prescriptive easement: A prescriptive easement happens when someone utilizes your property for their own purpose without your permission. The principle of adverse possession applies here. It’s important to note that this doesn’t have to result from something that many people would consider a big deal. It’s often as simple as a fence that’s partially on your property line or a garden box in a similar scenario.

Buying a house with a right of way easement

Because right of way easements are common, they don’t often scuttle a transaction. However, home buyers should absolutely know what they’re getting into as well as any rights their neighbors have 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 matters in life are open to negotiation, and easements can be among them. If you need to have an easement removed, the best way to go about it may be speaking with the easement holder and negotiating a 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 eat up time you don’t have during the home buying process.

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 reveal 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 a property to have easements such as utility easements or even right of way agreements between homeowners.

The bottom line: Understanding right of way easements will bring clarity to your home buying journey

Almost any home you purchase will come with some type of easement, with right of way easements being among the most common. Knowing which, if any, easements your home has on it can help you make an informed decision.

If you’re ready to move forward in your pursuit of a new home, start the application process today.