How do I know about an easement vs right of way?
On a day to day basis, the average person would have no reason to know the difference between an easement vs right of way. But when you’re buying or selling a home, it’s worth knowing the difference.
As part of all Purchase and Sale agreements that we write, there is a legal description as well as a title search date. When you buy a home and as part of the title search, your lawyer will come across various registered instruments on the property.
An instrument is something registered on title. Sometimes we find that it’s as simple as a previous sale or transfer, or a survey. Or, sometimes it outlines an easement or right of way.
It’s worth noting that in many cases, we see both easements and right of ways when buying an older home. This could be because urban planning wasn’t as organized as it is today.
We see easements far more often than we see right of ways. Easements and right-of-Ways are two such instruments you should investigate in further detail.
What’s the difference between an easement and right of way?
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.
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.
Another common type of easement is found the backyard in Guelph townhomes. This usually occurs in situations where properties are built close together. The owner of one property must have access over an adjoining property in order to maintain their home.
In a row of townhouses, people living in the middle of the row need to cross over the yards of their neighbours. This is for the purpose of getting something like a lawn mower to their own yard.
A good way to recognize this set up is that the owners have a strip of land at the back of the yard. Or, if their yard is fully fenced, a gate can be found on either side, allowing access. Watch out though, some easements require common access at the rear and will not allow the fully fenced with a gated option.
As with easements granted to Guelph utilities, property owners cannot impede the use of a legal maintenance easement.
The likelihood of acting on an easement depends on what the easement is. As well, it depends on the use of the easement. As an example, how often has Guelph Hydro (now Alectra) showed up at your house to dig up the front lawn? Or Guelph electricians show up to replace an electrical panel?
Almost never, and if they did they would likely be very courteous and repair any damage the best they could. But you could have an easement in your backyard for a common space. This would allow homeowners to walk their dogs, which could be daily.
Note that Easements do have a limit on their validity period. You can ask to remove them from title: we see all too often that completely irrelevant items are on title.
What is a Right of Way?
In comparison to an easement vs right of way, a Right-of-Way legally allows someone access through your property to get to another site. As mentioned, we see this fairly often in older homes, especially duplexes for sale in Guelph where multiple tenants share a driveway.
Here’s an example: In an older home, there is a mutual (share) driveway. Both neighbours use this in order to get to their own individual parking spaces at the back of their house. In this case, one of the owners owns the land. The other owner has a right of way to use the shared portion of the driveway to access their parking space at the back.
In this case, the ownership for the part of the property affected by the Right-of-Way remains with the registered owner on title. The parties benefitting from the Right-of-Way (in this case, the non owner) need the consent of the registered owner prior to making any changes to the area in question.
As an example, the non owner cannot just put up a fence at the foot of the shared portion of the driveway. They need permission from the registered owner of the driveway, who has the right to reject it.
The challenge with easements vs right of way is that every party in a right of way thinks they understand right of way use – but many times, each party’s understanding is very different.
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?
You would assume it’s whoever owns it. But, both of the neighbours use it? Who shovels the snow in winter? What if the owner wants to pour concrete for the driveway and for you to pay half?
You don’t have the money and want asphalt because it’s cheaper. In a way, it’s like a fence between two yards, but a driveway gets use almost daily and will require more maintenance. You’re best to establish these rules of engagement up front. It will avoid further headaches later.
What do you use the right of way for? Cars only? What about trucks or heavy equipment? Is the right of way only for access to the backyard parking spaces?
Or is it OK to park halfway down the driveway for no more than 30 minutes? Could someone do a renovation at the back of the right of way where it splits? How far into the right of way could they go?
Responsibility: If a worker parks on the right of way and has their truck stolen, who’s liable? Should one party be required to compensate the other if a user is harmed?
Termination or buyout: What if one party wants to buy out the other? Or what happens if you’re the owner and you want exclusive rights to the driveway. How will that work?
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