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Right of Way vs Easement. What's the Difference?

Written by Posted On Tuesday, 02 July 2019 15:30

When comparing right of way vs easement there are many key differences that are important to understand. Anyone considering purchasing property that has a right of way on it should take the time to learn exactly what that means and how it will affect them in the future. If there is a right of way on a property that shouldn't automatically make you reconsider purchasing it. In some cases, a right of way will not have much of an impact on you, it really does just depend on the situation.

What Is A Right Of Way?

An easement is a nonpossessory right to use or enter real property of another without possessing it. That means that another entity has the right to enter and use a part of your land for a specific purpose. It also means that you have a legal obligation to allow them to do so, and failing to do so could result in adverse actions against you. How does a right of way differ from an easement? A right of way is the right for anyone to pass through a portion of your land that may be considered public.

A right of way can most easily be described as a more limited type of easement. With a traditional easement, a portion of your land may be used by another party. This often includes provisions related to building structures or making other types of changes. On the other hand, a right of way only allows another party to pass through your property. They cannot alter property without your consent unless the easement states that they can, and they are restricted to a certain area of your property when they are passing through it. Just as you are legally bound to allow the terms of a right of way, those who are granted a right of way are also legally bound to follow it's terms.

A Right Of Way On Your Property Reduces Your Rights

When there is a right of way on your property your rights as the landowner are diminished. However, society, in general, is benefited, which is why the right of way was granted. Because you are bound by the terms of the right of way you will be limited in how you can use your property. For example, you wouldn't be allowed to build a fence or other type of structure on your property if it would impede the right of way easement that is granted to another party. This is one of the reasons why an easement of any type is often viewed in a negative light by people considering purchasing property that has one. When it's your property you want the right to do as you see fit, which isn't always possible when there is an easement or right of way involved.

Why Is A Right Of Way Granted

A right of way is granted when it is deemed to be beneficial to society despite the fact that it may not be beneficial for the property owner. One common example of a right of way easement is railroad tracks. Railroad tracks pass through private property that is not owned by the railroad company. Railroads transport goods that are necessary for society to function. Because of that society benefits if railroads are allowed to build tracks through private property. Another common example of a right of way is a pipeline that is used to transport water to neighbors. Once again, having access to water is beneficial to society, so it is allowed with this type of easement.

Will A Right Of Way Impact The Value Of A Property?

If you are thinking of buying a property that has a right of way you may be wondering if this can impact the property value in an adverse way. The simple answer is that it can. Many people that are looking at buying a property will be turned off if they discover that there are easements of any kind on it. Since any kind of easement limits that manner in which the property owner can use their property, they are looked at in a negative light. While a right of way lowering the value of a property is largely a negative thing, it can be beneficial if you are buying a property that has this type of easement on it. If you are buying a property with any type of easement on it you may be able to negotiate a lower purchase price from the seller.

picture of an easement

How Do You Know If There Is A Right Of Way Easement On A Property?

Generally speaking, a right of way must be in written form. An exception to this exists if someone has used a part of your land for a period of time. In this instance, they may be granted a prescriptive easement entitling them to continue using your land the way that they have been accustomed to. Whether or not they are granted a prescriptive easement will have to be decided in court.

If you are considering buying a house you definitely want to know if there is any type of easement, including a right of way, on it. How do you do that? A simple title search and review of the deed. Next, you should contact the county for more information. Finally, you should research the history of the property and it's past use to see if there is a chance that a prescriptive easement may exist or be granted in the future.

The easiest way to ensure that a property doesn't have a right of way is to contact a reputable real estate firm. A real estate firm has a team of experts that have access to the resources necessary to discover everything of importance related to a property. If you indicate that you are interested in using them to help you purchase a property, they will usually happily do all of the legwork for you.

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Joe Boylan

I have been a Colorado Springs Realtor since 1997 and as a first-year agent, I received the Real Trends Magazine, "Rookie of the Year" Award. Since then I have participated in hundreds of real estate transactions.
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