Easement vs Right of Way: Difference and Comparison

There are several rights to property that determines the ownership and usage of property or economic goods. They are important so that no person can illegally have rights over property that does not belong to him.

These can be intangible (that cannot be seen with eyes or touched) or tangible (can be seen and touched) properties.

In the absence of these rights, anyone can use property that does not belong to them. Among these rights, there are few that especially belong to private properties; they are easement and right of way.

Both of them are right to property and are related. This sometimes leads to confusion between both.

Key Takeaways

  1. An easement grants a specific right to use another person’s property for a particular purpose, while a right of way provides the legal ability to pass through someone else’s land.
  2. Easements can be positive, allowing access or use, or negative, restricting certain actions on the land, while rights of way strictly pertain to access and passage.
  3. Easements are permanent and transfer with property ownership, whereas rights of way can be temporary or permanent, depending on the agreement.

Easement vs Right of Way

The difference between Easement and Right of Way is that easement is a broader concept that covers more parts and areas of the private property than the right of way, which just covers a single or mainly path-blocking area of the property as it is just a part of the easement. An easement can be used for covering the drainage or underground parts of the property, whereas the right of way cannot be used for the purpose, as it belongs to the affirmative type under which, for a specific purpose, only the private property of a third party can be used.

Easement vs Right of Way

Under easement rights, a person is given the right to use the private property of a third party. A fess is charged in return for the use of the property or for getting the easement right.

Public utilities also buy these easements rights for several purposes, for example, for atm machines, for lighting for telephone booths installing, etc.

Right of way is an easement right under which a person buys the right of private property for the passageway process. In this right, it cannot be bought for any other purpose but only if the property is coming in between a passageway, for example, a road.

The right won’t be valid if the property is used for some other purpose.

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Comparison Table

Parameters of ComparisonEasementRight of Way
PermitsUse of someone else’s propertyUse parts of someone else’s property for the passageway.
RelationIt is the main subjectIt is a part of the easement
ScopeBroaderSpecific
TypesIt can be of two typeIs only one type
Part coveredDifferent partsSpecific parts serving as pathways

What is Easement?

An easement is a right where a third party can have a right to some part of the private property, but that does not give the whole right over the property. It still remains with the owner. The parts can be movable or immovable or both, and they can be issued by a public entity or private individual.

How does it work?

An agreement is made between the owner and third party for acquiring the ownership of parts of a property for some purpose in exchange for a fee.

In this agreement, it is important to mention the purpose and parts of the property that are used along with the fees charged so that in case of any violation, the agreement can immediately be terminated.

There are types of easement rights that can be given on the basis of the purpose of use. They are:

  1. Utility easement: it allows the right owner and property owner to run several types of pipes, such as water pipes and other utilities.
  2. Private easement: it allows or gives the right to an individual to use a third party’s private property for some personal use.
  3. Easement by necessity: it is the most liberal type of easement that sometimes does not require an agreement and can be enforced by law.
easement

What is Right of Way?

Under this, the easement right is issued for the purpose of passageway only. Under the right-of-way easement, no other part except the passing property is used.

For example, you cannot get a right-to-way easement for using the private property of a third party for a piping system or for personal use as in the personal easement.

An agreement is drafted between the parties for getting the right to way, and it is important to take the following points while drafting such an agreement:

  • Location: it is the most important aspect, where the passage is going and what is the exact location.
  • Uses and purpose: the exact purpose for using the easement and for the purpose it is used for.
  • Users: it is important to mention the entire user list, whether guests are allowed, contractors, or some other people.
  • Parking: can anyone park over the property, or some chosen ones are allowed to park?
  • Maintenance and repair: what is the fess of maintenance and repair and of being responsible for taking care of it?
  • Restriction: can any party restrict the usage of the right of way, and if they can, which party can do that?
  • Termination: which party can terminate this easement?
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Except for all the above, there are a few other points, such as change and compensation, that should be considered; otherwise, the agreement is void.

right of way

Main Differences Between Easement and Right of Way

  1. Both of them indeed protect the right of private property, but they differ in terms of permits, under the easement, permission to use someone else’s property is given, whereas, under the right of way, only permission to use the parts of private property for the passageway is given.
  2. Both of them are also related, as the easement is a whole and single concept, whereas the right of way is part of that whole and single concept.
  3. The easement is a broader topic that has several types, whereas the right of way is among the several types of easement and therefore is a more specific right for a narrow and specific purpose.
  4. Easements can be of two types, negative and affirmative. Under the negative easement, property owners are restricted from developing anything that can block the third party access to views or air, while affirmative permits the usage of someone else’s private property for specific use. But there is no such type in right of way. It, in fact, comes under that affirmative easement.
  5. Last but not least, they also differ in terms of the part of the property they cover, easement being a broader concept covers several types of parts of a property such as underground area, pathways or drainage, etc., whereas the right of way only covers the part that comes in between the main pathways such as roads, of the private property
Difference Between Easement and Right of Way
References
  1. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/staev19&section=10
  2. https://www.jstor.org/stable/786730
  3. https://www.sciencedirect.com/science/article/pii/S0169204615000201
  4. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/eclawq31&section=8
  5. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/calr30&section=14

Last Updated : 10 August, 2023

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26 thoughts on “Easement vs Right of Way: Difference and Comparison”

  1. The explanations of utility easement, private easement, and easement by necessity provide a comprehensive overview of the concept of easement.

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