A Home Buyer's Guide to Easements and Rights-of-Way

Team Simplist
A Home Buyer's Guide to Easements and Rights-of-Way
Jan 5, 2022

Review the various types of land use rights and restrictions before you purchase your new home.

A neighbor cuts across part of your new property to access the road out front. A local angler uses your dock for fishing or lake access. Everyone in your community uses a footpath at the corner of your yard to cut through to the local playground.

Sound less than ideal? Well, before you move into your home and start wagging your finger at unsuspecting locals, it’s important to know whether the scenarios outlined above are in fact covered by an easement or right-of-way in the deed to your new property. Taking the time to familiarize yourself with these stipulations before you purchase your home may help you avoid unpleasant surprises or incredibly awkward interactions with neighbors after you move in. Here’s what you need to know about different types of easements and rights-of-way:

What are Easements?

An easement is a legal designation wherein access to a piece of land is granted to a specific person, property, or organization for a specific purpose. While the title to the land remains with the property owner, someone else is given the right to use that land, often to provide access to a property that is cut off from the main road.

Dominant and Servient Estates As the name perhaps implies, the dominant estate is the property that enjoys the access benefits afforded by the easement’s terms. The servient estate, on the other hand, is the property that suffers the burden of allowing others to traverse the property. It is, of course, important to distinguish between these two parties in order to understand the use and limitations of the easement.

Types of Easements There are three primary types of easement used for different purposes and different scopes:

  • Easement Appurtenant “runs with the land” or, in other words, is tied to the property—not to the life of an individual that owns it. In this case, the easement remains in place even if the owner of the servient estate dies or sells the property to another individual.
  • Easement in Gross, on the other hand, is linked to a specific person or entity and is sometimes irrevocable. For example, a power company may be given an easement in gross, allowing it to access all property in its jurisdiction for maintenance and billing purposes. This type of easement generally cannot be removed. On a more personal level, a homeowner may grant an easement in gross to a friend or relative for some specific purpose. In this case, the easement would transfer upon the sale of the property and it would be up to the new property owner to choose whether or not they wish to honor the easement.
  • Easement by Prescription is generally created to codify an easement that is currently occurring in practice. For example, if the corner of a fence accidentally crossed over onto a neighboring property and the injured homeowner did not challenge the placement of the fence, the fence-owning neighbor could, after a period of years, apply for an easement by prescription to allow the fence to remain.

What is a Right-of-Way?

In contrast to an easement, a right-of-way grants access without regard for the person, household, or entity using that access. This may occur if, say, the path to a park entrance or beachfront passes through a portion of private property. If you are purchasing a piece of property with a widely recognized right-of-way, it is advisable to take into consideration the subsequent noise, damage, littering, and liability issues that may arise—especially if you’re a private person who values their peace and quiet!

How do you determine if there is an easement or right-of-way on the property you’re interested in? There are a number of ways to check for easements or rights-of-way before you make a purchase offer on a property. You might want to:

  • Check the legal description of the property on the existing land record to see if there is language associated with an easement or right-of-way. Your attorney can usually help you to translate the legalese and figure out what to expect!
  • Contact the county land office or tax assessor for detailed plat maps and information about the land in which you are interested.
  • Research the specific language and restrictions associated with the easement or right-of-way so that you understand your rights and responsibilities in regard to the access.
  • Understand how the property is currently used or how it has been used in the past. If you are familiar with the neighborhood, you may have some idea of any shortcuts commonly associated with the property.

Can easements or rights-of-way be terminated or revoked?

While rights-of-way are typically quite difficult to terminate, there are certain circumstances under which easements can be removed. Here are just a few:

  • In the case of excessive easements, or those that no longer apply, it might be possible to introduce a quiet title action. For example, if a previous property owner granted an easement to a specific person who is no longer living in the area, you may be able to terminate the easement.
  • If the purpose for the easement is no longer applicable, it may have expired and may then be revocable. For example, if you granted an easement for property access until an access road has been built, and that road is now complete, there may be no further purpose for the easement.
  • If the dominant estate owner permanently abandons the property or use that the easement covers, and can be shown to have no intention of returning to the property or the land use covered by the easement, it might be possible to extinguish said easement. This can also occur in the case of a prescriptive easement whereby the user no longer wishes to use the property covered therein. However, you’ll need to demonstrate that the dominant estate owner is permanently relinquishing all right to the easement—we’re sorry to report that their year-long, round-the-world cruise can’t be considered worthy cause for removal!
  • If the dominant and servient estates are combined—either by one property owner selling to the other or by a third party coming in and buying both properties—there would be no more purpose for the easement, and it could be terminated.
  • If both parties agree that there is no more compelling reason for the easement, they can choose to terminate it by executing a release agreement.

You want to go into your home purchase feeling prepared, and Simplist has got your back. Not only do we search high and low to make sure we find you the best mortgage rates for your specific situation, but we’re happy to answer any questions you might have about the home financing process. Set up a call with one of our licensed loan experts today—they’ll be happy to walk you through your options and help you find the mortgage product that’s just right for you.

Previous
View all articles
Next