How do I know about an easement vs right of way?
Easement vs Right of Way: For most people, the difference between an easement and a right of way isn’t important daily. However, if you’re buying or selling a home in Guelph, understanding these terms is crucial.
During a real estate transaction, your lawyer reviews the property’s title search, which reveals registered instruments, such as previous sales, surveys, easements, or rights of way. These legal descriptions impact property use and ownership rights.
When it comes to buying an older home in Guelph, it’s common to find both easements and rights of way, especially in neighborhoods developed before modern urban planning. Easements are more frequently seen than rights of way and deserve careful investigation.
So, what exactly is the difference between an easement and a right of way? Let’s explore.
Understanding Easements: Types & Legal DefinitionsEasement:
The most common types of Easements are those registered in favour of a municipality or a utility company. These grant such entities the right of access to your property for repairs or maintenance.
In legal terms, the parcel of land that enjoys the use or benefit of the easement is known as the “dominant tenement”. The parcel of land that that the easement runs through is called the “servient tenement”. If the owner owns both the servient and the dominant tenements the easement disappears. It will merge.
Exceptions to the need for a dominant tenement arise when dealing with easements for such things as water, sewage, and electricity.
Utility easement
As an example, in some neighbourhoods you’ll notice that there are no overhead hydro lines. This is because the utility company has buried them underground. But what happens if there is ever a problem with the lines and they need to dig it up?
An easement in this case is provided on the property. It means that although the home owner owns the land, the utility company has the legal right to make repairs and maintenance as required.
Sometimes, easements are specifically related to one property and sometimes easements impact each house in an entire neighbourhood.
Maintenance easement
Easements in Guelph Townhomes: Many Guelph townhomes have backyard easements, especially in closely built areas. Owners often need access over neighboring properties to maintain or access their yards, such as for lawn mowers or repairs.
Typically, these easements are visible as strips of land at the back of yards or via gates on fenced yards. However, some easements require shared access and may not permit full fencing or gates.
Property owners cannot block legal easements, like Guelph utilities or maintenance easements. The use of easements varies such as Guelph Hydro (Alectra) or Guelph electricians may access yards rarely and courteously, for tasks like electrical repairs.
Note: Easements are time-limited and can be removed from the property title if no longer relevant. Regularly reviewing easements helps prevent unnecessary restrictions or disputes.
What is a Right of Way?
Right of Way vs Easement: A right of way legally grants someone access through your property to reach another site. This is common in older homes and duplexes for sale in Guelph, where multiple tenants share a driveway.
For example, in an older home with a shared driveway, both neighbors use it to access their parking spaces at the back. The property owner owns the land, but the other neighbor has a right of way to use the driveway.
The ownership of the affected land remains with the registered owner, and the party benefiting from the right of way must get permission before making changes—like installing a fence or modifying the area.
A key challenge with easements vs right of way is that each party often has a different understanding of its use, which can lead to disputes. Clarifying rights and responsibilities upfront helps prevent future conflicts.
Here are a few things to consider if you have, or are considering a property with a right of way:
Location: Where exactly is the Right of Way? This is why a survey is VERY important before making a purchase. Bonus points if that survey is somewhat recent. As we mention above, legal descriptions are sometimes outdated and a recent survey could clarify.
Parking: on the right of way: in our example, the shared driveway was used to access a private parking space. Both parties had a space at the back of the yard.
But, what happens if it’s more convenient for one neighbour to park halfway up the shared driveway?
Their kitchen is closer to the front of the house and unloading groceries is easier! Or what happens if one party has guests? Can they block the shared access for a few hours?
You see where this is going? It leads to disputes, resentment and misunderstanding.
Who maintains the right of way?
When it comes to easements and rights of way, who actually owns it? If neighbors share the space, questions arise: Who shovels snow in winter? What if the owner wants to pour concrete for the driveway and split the costs?
If you prefer asphalt for affordability, it’s important to establish clear rules upfront, as a driveway sees frequent use and requires maintenance. Clarify what the right of way covers—Is it only for cars? Can trucks or heavy equipment access it? Is parking allowed for short periods? Can renovations happen where the right of way splits? How far into it can work extend?
Responsibilities also matter: Who’s liable if a worker’s truck is stolen from the right of way? Should one party compensate the other for damages or injuries?
Consider termination or buyout options: What if one neighbor wants to buy out the easement or gain exclusive driveway rights? Addressing these questions early can prevent disputes later.
Does an easement or right of way impact my property value?
Generally, no. Most easements start when the property is built. It’s just part of the home buying process. In some older homes, changes in the development of the area may have caused an easement or right of way.
Be sure that you understand what that easement vs right of way is before committing to buying a home. It’s very difficult (sometimes impossible) to remove or change and easement or right of way once you own the property.
Related: this article is part of a larger series: 16 Things to Consider when Buying an Older home and 23 Common Real estate terms
Got Questions?
As always, if you have any questions please give Beth and Ryan’s team a call! We’re proud Guelph real estate agents