You might find yourself using the words “easement” and “right of way” whenever you are in a discussion over ownership of property. These two concepts, however, have different meanings and can’t be applied the same way in all situations. One needs to appreciate the importance of the differences in definitions of easement and right of way as far as property access and usage rights of other persons are concerned.
In this blog, we are going to look at the differences that exist between easements and rights of way, the various types, and their effects in terms of property ownership.
What Is an Easement?
An easement can be defined as the right accorded to a person to enjoy the use or access of land owned by another for some particular reason without the necessity of owning the same. Easements are situations in which property owners are allowed to cross over other people’s lands to access certain facilities like utility lines, driveways, or footpaths. Thus, it is like giving a portion of one’s property to another person for certain specified purposes, but not all rights about ownership.
Types of Easements
There is a variety of easement types that differ in purpose:
Appurtenant Easement
Appurtenant easement concerns two plots of land- dominant (the plot that is entitled to the benefit of the easement) and servant (the plot that gives the easement). An example of such easements occurs when a property needs to use a road, a driveway, or some utility existing on a neighboring property.
Example: A person may enjoy easement rights for access across a neighbor’s driveway to reach her house if its only access road is through the neighbor’s property.
Easement in Gross
An easement in gross directly benefits a person or business rather than an actual piece of land. This type of easement has no dominant estate but continues to encumber an estate. Often these types of easements are issued to the utility companies enabling them to use someone’s land for the provision of power overhead lines, piping, or sewage systems.
Example: A utility company may have an easement in gross allowing it to run electrical power lines over your lot, but this easement is not for a lot adjacent to yours.
Prescriptive Easement
Prescriptive easements can be claimed in cases when a person freely, openly, and without permission uses someone’s property for a certain period of time (which differs according to local laws
Example: If a neighbor has been traversing your driveway to go to their house for a long period without any objection, they may apply to the court for a prescriptive easement allowing them to continue doing so.
Express Easement
It is a kind of easement documented in writing with an agreement between the owner of the properties and the person benefitting from the easement. These are usually registered a on property deeds or contracts, therefore making the arrangement official and enforceable by law.
Example: Two neighboring landowners can decide to formalize an express easement concerning the use of one landowner’s land for driveway access by the other landowner.
The Impact of Easements on Property Ownership
Owning property comes with various easement implications that directly affect the easement owner. Generally, easements do not grant possession of the relevant land; however, they restrict the use of the property by the dominant tenement holder. For instance, if there exists an easement over your land, it may be impossible to put up any structures or even erect fences in that area because doing so would interfere with the activities of the easement holders that are entitled to them.
In addition, easements are usually forever and ‘run with the land’ which means they persist in the practice even after the ownership of the property has changed hands. This could impact how the property is appraised and thus this is a factor to bear in mind while buying or selling property.
Definition of Right of Way
A right of way is a certain class of easement that allows a person to pass through another person’s land. It conveys a non-possessory interest, in that access is afforded through the land but not ownership or any other form of control is exercised.
Such easements are generally allowed in situations when one parcel of property is “landlocked,” meaning it cannot be accessed from a public roadway unless goes onto property owned by another. In these situations, a right of way usually protects the homeowner's ability to get in and out of their house, even if it means traversing the property of a neighbor.
Rights of Way vs Easements
Similar to easements, most rights of way are easements. However, some distinctions exist. A right of way exclusively pertains to the right to traverse or reach a certain tract of land belonging to somebody. In contrast, an easement may allow for a wider scope of activities, such as the placement of electrical or plumbing services or waterways.
Furthermore, a right of way is often confined to access only, while other forms of easements might permit further encroachment on the land.
How Easements and Rights of Way Are Created
Such rights can be acquired in various ways as follows:
Written Agreement
This is the most popular method of all which requires the property owner and the said beneficiary of the easement or right of way to enter into a formal and detailed written conduct. This instrument is later lodged with the relevant authority which will ensure that it forms part of the legal records pertaining to the property.
Deed
Easements and rights of way are commonly provided for in the deed relating to the particular property. When such property is subsequently conveyed to a new owner, that new owner has to respect the rights of the previously existing easements or rights of way over the property limits.
Necessity
A right of way is sometimes obtained as a result of necessity for example a case of a person owning a piece of land which is surrounded by other properties with no access points. Under these circumstances, the available remedy would be to apply to the courts for a right of way.
Prescription
Just as in the case of prescriptive easements, so too with rights of way: these may be created by the establishment of a right by continuous and uninterrupted use. If for instance, a person uses and passes through a beaten track on a piece of land that is otherwise owned by another person, for several years without any interference from the owner, the person using the track would be entitled to use the track forever.
Conclusion:
An easement is a legally recognized permission given to one person to use some portion of the land that belongs to someone else for some specified objective, whereas a right-of-way is a particular type of easement over someone’s property to get to another property. Both of these usually affect how a property is used and its value, hence it is advisable to be aware of one’s rights and the consequences of such agreements.
