Is It An Easement Or A Right Of Way?

People often use these terms interchangeably. For the average person there seems to be little distinction. But when you are buying or selling a property, there are important differences between the two that you should know.

Both easements and rights of way are legal agreements, common in both urban and rural environments, that confer on an individual, company or municipality the right to use another's property (the “Servient Property”) in some fashion. They may also restrict how the Servient Property owner can use all or a portion of their property. Both are generally registered on the title of the Servient Property, and therefore can “run with the land”, meaning that they remain registered in place and transfer automatically when the property is transferred. The parcel of land that owns these rights is known as the “Dominant Property”.

Easements are much more common than rights of way and most frequently granted to municipalities or utility companies. These grant such entities the right of access to your property for repairs or maintenance, such as for underground hydro, water, gas, or cable lines. Because easements are more common and handled by more sophisticated parties, they tend to be drafted with clear terms outlining the rights and obligations of all parties.

Rights of way, by contrast, legally grant someone access through one property to reach another, whether that site is owned by that someone or by a third party. While that sounds simple, rights of way often create misunderstandings as parties may have a different idea of what the agreement allows. Each party may think they understand the right of way, but more often than not, each party has a very different understanding.

A classic example of this is a shared driveway that provides access to parking behind two adjacent properties. Typically, either owner cannot simply erect a fence at the front of their shared portion of the driveway, nor can they remove their section of the driveway even if they do not personally need it. Any change requires the permission of the registered owner of the driveway, who has the right to reject any change. Other rights of way can revolve around the shared use of certain amenities such as walls, fences, or wells.

Misunderstandings also commonly arise around the maintenance and use of the right of way. While the full range of these misunderstandings is too extensive to cover in this article, common issues that arise are unique to a situation, and depend heavily on past usage, current practices, or any written or oral agreements—many of which may not exist.

Examples include:

• Who shovels the snow in the winter?
• What happens if your neighbour wants to pour concrete, but you cannot afford it?
• Is it limited to cars only, or does it include trucks and heavy equipment?
• Can anyone park on the right of way?
• Who carries liability if someone is injured?
• What if one neighbour wants to build a taller fence?

If you are unsure about the scope of an easement or right of way on a property you own—or one you are considering purchasing—it is always best to consult a lawyer. Legal advice can help you avoid misunderstandings, resolve disputes, and ensure you fully understand your rights and obligations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.