Right of way vs. easement: What’s the difference?

When you own a home, you assume you control who has access to your property. In some cases, others may have the legal right to use specific parts of your property as a pass-through if there’s no other way to reach their own property.

This is where rights of way and easements come into play. A right-of-way easement allows someone to legally use a pathway on a property that’s neighboring theirs. Other easements give people access to property they don’t own.

Let’s take a closer look at each of these terms, examples of each, and what happens when you buy a house with a right of way easement.

What is an easement?

An easement gives a person the right to enter or use another owner’s land for a particular purpose without owning or possessing that land. For example, a utility company could have a utility easement that grants it the right to enter a property to maintain power lines.

Easements, by definition, are:

• Broad in scope and cover various rights ranging from linear access to conservation concerns.
• Versatile in approach, accommodating a wide range of land-use needs beyond passage.
• Inclusive of a spectrum of usage rights and address many different needs.

What is a right-of-way easement?

All rights of way are easements, but not all easements are rights of way.  A right-of-way easement is the right to travel across someone else’s land, typically for transportation purposes. For example, your neighbor may have a right of way to use your driveway to reach their landlocked property.

Right-of-way easements are:

• Narrow in scope and focused on providing a designated linear passage.
• Limited to a clearly granted path, avoiding broad usage, and aligned for defined travel purposes.
• Exemplified by roads connecting properties, driveways, and pedestrian pathways.

Conditions defined by easements

Easements grant access to land not owned by the user and create the conditions for that use. Both parties ideally understand how the land will be used and for what reason an easement is established.

Let’s examine some here:

Purpose

An easement might simply involve legal access. But it could also be for drainage, utility lines, access to a shared driveway, or even preserving views. If you have an alley that runs behind your home, an easement may allow access for garbage pickup.

Exclusivity

Easements can be exclusive or nonexclusive. If they are exclusive, only specific people can use them. Your electricity provider, for instance, may have an exclusive easement to access a transformer on the edge of your yard. Rights of way, by contrast, are typically nonexclusive.

Ownership

Easements also can be either appurtenant or in gross. Appurtenant easements link two properties, such as a right of way that enables one homeowner to walk or drive across their neighbor’s lot to get to a road. This right is tied to the land and transfers with ownership.

Easements in gross apply to an entity or person, like an electricity provider that has access to a property to maintain power lines regardless of who owns the land. Right of way easements are commonly the appurtenant type because they usually involve access between neighboring properties.

Legal permanence

Once easements are granted, they generally are permanent. That’s true even if ownership of the property changes, unless otherwise decided by a court. Say an electricity provider enjoys an easement to run its power lines across your yard. Since this easement is permanent, it can continue doing so after you sell your home.

Rights of way are less rigid. They typically are associated with access needs and can be changed or discontinued if both parties involved agree.

Other 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.

Common easement types and their uses

How to find out if a house has a right of way easement

A title search should uncover easements that aren’t implied or prescriptive. The search will also reveal any other encumbrances, which refer to any limits on how you can use the property. For example, a common encumbrance is a lien requiring a payment of debt if the property is sold.

Buying a house with a right of way easement

Because right-of-way easements are common, they usually don’t cause problems with a transaction. However, if you’re preparing to buy a home, you should know what you’re getting into and learn about any rights your neighbors will have to your property. This way, you can make a more informed decision about whether to buy.

If you learn that a home you desire has an easement, you might be able to use this issue in negotiations as a bargaining chip to get seller concessions to help with your closing costs.

Removing an easement

If you want to have an easement removed, often the fastest and least expensive way to do so is to contact the easement holder and negotiate a termination of the agreement.

Removing an easement may involve:

• Negotiating a written release from the easement holder.
• Demonstrating that the stated purpose has become impossible or obsolete – for example, a relocated utility line.
• If no agreement is reached, you may need to petition the court through a quiet-title or declaratory-judgment action. This may involve legal fees and several months before a decision.

The bottom line: Know about rights of way and easements before you buy

Easements are important elements in real estate because they represent a legal right to use another person’s land for a particular purpose, like accessing a shared driveway or running utility lines. Almost any home you purchase will come with some type of easement, with right-of-way easements among the most common. Knowing which, if any, easements a property has on it can help you make a more informed decision about buying it.

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