Right of Way Easement Guide

Table of Contents

What Is a Right of Way Easement?
Easement vs. Right of Way
Right of Way Easement Examples
Should I Buy a House With a Right of Way Easement?
Ways to Terminate a Right of Way Easement
Right of Way Easement Bottom Line

What Is a Right of Way Easement? 

A right-of-way easement is a right allowing individuals to pass through someone else's property, typically via a road or path. If a property blocks access to other private or public property, a right-of-way easement is necessary to allow others to get to it.

A right-of-way easement can be created voluntarily by the landowner or through a court order. 

This type of easement typically allows reasonable travel for the public. However, it can also be used by utility providers and private companies who need to access private land for a justifiable reason.

A right of way can be public or private. For instance, you may allow your neighbor to pass through your yard to get to another street faster, which is a private right of way. Or, if your property is blocking access to a nearby road, you may grant a public easement allowing anyone to pass through your yard to get to it.

Types of Right of Way Easements

1. Appurtenant Easement

   • Attached to a specific piece of land (the dominant estate) and provides a benefit to that property.
   • The burdened property is known as the servient estate.
   • Typically transfers with the property when sold.

2. In Gross Easement

   • Granted to a person or entity rather than attached to a specific piece of land.
   • Commonly used for utility easements.
   • May or may not be transferable, depending on the terms of the easement agreement.

Easement vs. Right of Way

The difference between an easement and a right of way is that the former is a right given to specific groups to access private property. The latter refers specifically to the right of individuals to pass through a property. 

A right of way is an easement that applies to a common situation. But not all easements are a right of way, so the words are not interchangeable.

The right-of-way easement is perhaps the simplest to understand, but several other types of easements apply to specific scenarios.

Right of Way Easement Examples

Right-of-way easements are very common, especially in rural areas where a homeowner may own a large plot of land. For example, say you own a waterfront property along a public beach. If there is no other way to access the beach except through your yard, you must create a path and grant a public easement. 

Or say you buy a plot of land that has no access to the main road because other properties surround it. The property owner closest to the road may have to grant you a right-of-way easement, allowing you to build a road to connect a driveway if you so choose.

Other common examples include if an electrical company needs to run cables through your yard to service the neighborhood or a railroad company needing to lay train tracks on the edges of your land. 

Should I Buy a House With a Right of Way Easement?

While there is nothing inherently wrong with a right-of-way easement, you should weigh the pros and cons if you're thinking of purchasing a property that has one. Legally, the seller must disclose any easements to you before you decide to buy. So, you should pay attention to where they are and how they may affect your daily life. 

If the property is large and the easement is barely ever used, you may not even notice it. However, if there is a sizeable path that strangers often frequent, it may cause privacy concerns. Plus, if you expand the property, you'll have to be sure not to block the easement. So, while it isn't necessarily a deal-breaker, you should consider it when deciding whether or not to make an offer.  

If you're thinking of purchasing a home with a right-of-way easement, be sure to find out where it is and what rights it grants before you decide to buy. While it is possible to challenge a right-of-way easement, you'll have to go to court to dispute it, which can be expensive and time-consuming. 

Many buyers use a right-of-way easement in their favor when negotiating, and you may get the seller to agree to drop the price or offer concessions if you contest the easement. 

Ways to Terminate a Right of Way Easement

1. Agreement: Easement can be terminated if both parties agree to end it, often through a written release.
2. Expiration: Easements with a specified duration expire at the end of that period.
3. Merger: Easement terminates if the dominant and servient estates come under common ownership.
4. Abandonment: A right of way easement can be terminated if the dominant estate owner shows clear intent to abandon it through non-use or other actions.
5. Necessity Ends: Easement by necessity terminates if the necessity no longer exists (e.g., another access route becomes available).

Right of Way Easement Bottom Line 

Right-of-way easements are relatively commonplace, and you may come across one while buying a home. Right-of-way easements are important legal rights for ensuring access to properties and allowing the installation and maintenance of essential utilities. Understanding the types, creation, rights, and responsibilities associated with easements can help property owners navigate potential issues and maintain good relationships with neighbors and utility providers. For complex situations, consulting with a legal professional specializing in property law is advisable to ensure all aspects are appropriately addressed.