Easement vs. Right-of-Way

Easements and rights-of-way are types of property rights that can allow others to use your property. Understanding these property rights is crucial to your success, whether you’re a landowner, oil company manager, government official or anyone in between.

If you need access to someone else’s property, or if outside entities are trying to access your land, keep reading to understand the differences between easements and rights-of-way, plus when each applies.

What Is an Easement?

An easement allows a person or entity to use someone else’s property for a specific purpose.

For example, utility companies will often have easements on property to build, access and repair power lines, sewer pipes or other components. Similarly, a railroad company would need an easement to construct tracks across your property, or a government might need an easement to build a road through private property.

If you would like to access someone else’s private property, you will first need an easement.

Different Types of Easements

While easements seem simple on the surface, there are several different types to consider.

First, easements can be either appurtenant or in gross. An easement appurtenant ties directly to the property, not to an owner or a specific length of time. If a property owner changes, an easement appurtenant remains in effect. For example, these easements allow a landlocked property access to a public road — if the surrounding property changes hands, residents will still have access to the road.

Conversely, an easement in gross ties to a person and not to the property, allowing whoever holds the easement to use the property. Utility companies typically use easements in gross to gain access to utility components. However, if a property owner changes, easements in gross are revocable, because they relate to a specific person.

Next, easements can be either affirmative or negative. As their names suggest, affirmative easements allow the easement holder to use the land in a specific way, while negative easements prevent the easement holder from using the land in a particular way. The example of allowing residents of a landlocked property to cross another property to access a private road would be an affirmative easement, because it permits its holder to do something. An example of a negative easement could be agreeing not to block a view by building a fence or constructing a tall building — in this case, the easement prevents a specific use. Negative easements are less common.

Finally, easements can be either express or implied. Express easements are in writing, usually through a deed, will or contract, while actions or inactions create implied easements. Implied easements break down into two further categories — necessity and prescription.

Easements by necessity would include the previous example of providing a property owner access to public roads and utilities if another private property cuts off access to these utilities. In this situation, it is necessary to cross private property to access public areas. Prescriptive easements can be more complicated — they arise if a person has used another person’s land in a particular way for a specific amount of time, meeting set requirements. Easements by prescription often occur in rural areas, frequently with fences built too far onto someone else’s property. In this example, if a property owner realized several years later that they had constructed their fence on someone else’s land, they may request a prescriptive easement to avoid having to rebuild it.

The Scope of an Easement

An easement’s scope can vary depending on each case, but they are typically constrained, applying only to a specific person, entity or piece of land. If someone grants an easement to a particular person, they are generally non-transferable. For example, if a property owner allows his friend to fish in a pond, that friend cannot extend the invitation to someone else without the property owner’s consent.

Easements can also vary in the length of time they are effective. If there is an agreed-upon termination date, that date will end the easement. A property’s sale may terminate an easement in gross, and easements by necessity may end if it’s no longer necessary to access another person’s property.

What Is Right-of-Way?

What is a right-of-way easement? This agreement allows one person to travel across someone else’s property. Property rights-of-way can be either private or public. A private right-of-way could include allowing your neighbor to cut across your backyard to make it easier for him to access his property or a public road. A public right-of-way often allows people to travel across designated parts of private property to access a public area — most commonly, to allow the public access to a road cutting through private property.

As with any legal agreement, property owners granted right-of-way should fully understand its scope. Defining who owns right-of-way property, what areas the agreement covers, who can use these areas and why, who is responsible for their maintenance and more will help prevent misunderstandings or disputes.

What’s the Difference Between Easement and Right-of-Way?

Rights-of-way are essentially a specific type of easement, usually an easement appurtenant. Therefore, while all rights-of-way are easements, the opposite is not true.

A public right-of-way is broader than a typical easement because it allows anyone access to a defined portion of private property and doesn’t tie to a specific person.

Determining whether you need a right-of-way or a different type of easement will depend on what situation you find yourself in. Rights-of-way relate to travel and would be necessary if a private property cuts off access to a public area. In most other circumstances, you would need a different type of easement to gain access.

Entities most commonly seeking a right-of-way are governments or utility companies trying to build and allow access to public roads. Other applications, such as building pipelines or constructing power lines, would still require an easement — typically an easement appurtenant — but not necessarily a right-of-way.

SelectROW’s Right-of-Way and Property Easement Services

SelectROW provides land, easement and right-of-way acquisitions for clients throughout the entire United States. From governmental entities and private solar developers to electric, gas and telecommunication utility providers, we have provided quality consulting, negotiating and acquisition services since 1972. Our skilled team works diligently to ensure you get timely, high-quality and cost-effective results.

To learn more about our land, easement and right-of-way acquisition services, request a proposal today!