Right of Way & Easements

 

Overview

 

If you have easements and rights-of-way included on your deed, then it could limit your ability to work on your land. These items can remain on a deed in perpetuity (forever) unless both parties agree to have it removed. For this reason, locating them on a deed is necessary for property owners, and understanding the difference between the two is an essential first step.

 

Easement

 

An easement is a liberty, privilege, or advantage without profit, which the owner of one parcel of land may have in the land of another. In other words, an easement is a permanent right authorizing a person or party to use your land or property a particular purpose. This can include access to natural resources on the land, development of necessary utility pipelines or construction and maintenance of a waste water treatment plant.  Landowners are paid a price for the easement and can continue to use the land for most purposes, although some restrictions are included in the agreement. The easement instrument is the legal document that must be signed by the landowner before the utility can proceed with its business.

 

There are two types of easements: gross and appurtenant.

  • Gross Easement - Typically held by a specific individual, a gross easement allows use of property without the benefits of ownership. Since gross easements can be held by a third party, it’s necessary to research whether this is the case prior to starting a project or real estate transaction.
  • Appurtenant Easement - Often issued for the benefit of adjoining lands, an appurtenant easement automatically transfers when a property is sold. If a property’s deed has an appurtenant easement attached, it’s important to find out when it was originally included and the reason for inclusion.

Easements are forever; they are not subject to termination or expiration. Once an easement is signed, it becomes part of the property record. For example, a utility company, the landowner who signed the easement, and all future owners of the property are bound by the terms of the easement agreement. The utility company can, at some point, choose to release the easement rights if it removes the transmission line and abandons the right-of-way.

 

Right-of-Way


Rights-of-way differ greatly from easements because they do not allow other parties to use the land, but simply pass through. A right of way allows others to travel on private property to get to a different destination. For example, a deed with a right of way may permit individuals to travel on a driveway, through a back yard, or on another area of property. Typically, rights-of-way are issued to allow access to an adjoining property.

 

Usage

 

Generally, land within rights-of-way may be used for any purpose that does not interfere with the construction, operation, or maintenance of the whatever the right-of-way is for. In agricultural areas, the land may be used for crop production and pasture. In areas where the land will be developed, streets, lawn extensions, underground utilities, curbs and gutters, etc., may cross the right-of-way with prior written permission from, say, the utility.

 

Maintenance & Exclusivity

 

Unless an agreement is made otherwise, it's the easement owner's duty and right to maintain the easement. However, the easement owner is restricted from improving the easement to the extent of materially altering the character of the easement where the alterations would greatly burden you or interfere with your use and enjoyment of the land.

 

Persons entitled to use the easement are mostly dependent upon the terms of the grant or agreement as interpreted by of the circumstances when the grant or agreement was made. For right-of-way easements, when entitlement is unclear, courts have held that the easement is not intended to benefit the general public, but is reserved for the easement holder.

 

In sum, before you purschase your retreat land, be sure to check thoroughly for any easement agreements or rights-of-way; otherwise you might find your precious seclusion to short lasted.

 

 

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