What is the difference between an easement and a right of way?

Disclaimer: This article on easements vs. rights of way is intended for the purpose of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

As a homeowner or landowner, it’s important to know who can come onto your property and why. In this easy-to-understand guide, we’ll explain the basics of property rights, helping you understand who’s allowed on your land and for what reasons. We’ll walk through the difference between an easement and a right of way. 

At Beeksma Law, we specialize in real estate issues that are unique to rural properties – such as shared well agreements – and can provide advice on your rural property. 

What is the difference between an easement and a right of way?

At first glance, easements and right of ways may seem interchangeable. They both allow someone else the right to use your property, but they have distinct purposes in property law.

What is an Easement? 

An easement grants specific rights to someone other than the property owner, allowing access or use of a portion of the property for a particular purpose. This could include granting your hydro company the right to access your land for maintenance or allowing a neighbor to use a shared driveway. In legal terms, there’s a dominant tenement (the property benefiting from the easement) and a servient tenement (the property burdened by the easement).

What is a Right of Way 

On the other hand, a right of way permits someone to pass through your property to reach another destination. We see these on occasion in recreational properties, such as cottages. In this scenario, the waterfront owner grants an easement to the landlocked property, allowing them access to the shorefront.

Easement vs. Right of Way: Why Does it Matter?

Understanding the difference between easements and right-of-way is essential, especially when you’re buying or selling a property. Firstly, they have legal implications since they’re registered on property titles, which could lead to disputes or surprises down the line. Secondly, they dictate how you can use your property, whether it’s for utility access or shared spaces, so clarity is key for getting along with your neighbors. Lastly, while they might not always directly impact property value, they can influence how potential buyers see the property, so being well-informed helps you make smart investment choices.

Types of Easements 

There are different easements that can be registered against your property. Let’s consider just a few examples. 

Utility Easements

This is the most common type of easement and one that virtually every property has registered on title. Your property likely has an easement allowing the utility company to access underground lines. While you own the land, the utility company has the legal right to conduct maintenance as needed.

Shared Driveways 

Usually, when a property owner divides a lot and establishes a shared driveway between the properties, it’s known as severing a lot. When this happens, the express grant is recorded on the property’s title. It’s important to note that all agreements regarding land interests must be documented in writing; verbal agreements are not legally acceptable. Easements should be registered on the titles of both the dominant and servient properties, with the dominant land listed as “together with” in the description and the servient land listed as “subject to” to ensure proper recording of the easement.

Conservation Easements

Conservation easements are gaining popularity, restricting development on a property to preserve natural resources. While limiting your usage, they serve broader environmental goals.

Navigating Easements and Right of Ways: Tips for Homeowners

When dealing with property transactions involving easements or right-of-ways, several important factors must be considered. First and foremost, it’s crucial to do your due diligence before finalizing any purchase. This means performing a comprehensive title search to uncover any existing easements or right-of-ways that could affect the property.

Next, it’s essential to have a clear understanding of your responsibilities regarding maintenance, access, and usage rights outlined in the easement or right of way agreement. Seeking advice from a real estate attorney can provide valuable insight if you’re unsure about the implications of these agreements, ensuring that your rights and obligations are clearly defined. Additionally, any modifications or agreements related to easements or right of ways should be documented and legally binding to prevent potential disputes down the line. Finally, it’s important to consider how these easements or right of ways might impact your long-term property plans, allowing you to make informed decisions during the transaction process.

Beeksma Law: Your Partner in Rural Property Law 

When it comes to legal advice for your rural property, Beeksma Law is your go-to source. With their wealth of experience and dedication to client satisfaction, they offer invaluable guidance on easements, right of ways, and all property-related matters. Whether you’re buying, selling, or managing rural property, you can trust Beeksma Law to protect your rights and ensure your interests are always taken care of.

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