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When it comes to protecting property interests and ensuring lawful land use, distinguishing between an easement and a right-of-way is crucial. As experienced real estate lawyers in Phoenix, AZ, Anthony Law Group helps you understand the difference and their role in real estate legalities. Learn more about the nuances and when to seek our help.

Easement vs. Right-of-Way: The Key Differences

Both an easement and a right-of-way involve allowing others to access your property. Yet whereas an easement allows a person or organization access to someone else’s property for a specific reason, whereas a right-of-way gives a person permission to access a person’s property for the sole purpose of travel.

Whether you own private property, run a business, or administer government land, it behooves you to be aware of these distinctions.

The Different Types of Easements and Their Role in Real Estate Law

Property easements fall into several different categories.

An Implied Easement Arises Out of Necessity

An implied easement is the hardest type of easement to define. It often occurs when developers subdivide land and need continued access.

Imagine you own a piece of land and divide it into two even plots. While plot one maintains access to a public road, you can only reach plot two through the first tract of land. What happens when this landlocked area has power lines or other utilities?

The utility company will have an implied easement because it’s the only way they can provide essential services and maintain power lines. While not an explicit easement holder, they have an assumed right to access someone else’s property.

An Express Easement Requires a Written Agreement

When you are comparing easements vs. rights-of-way, an express easement is perhaps the easiest concept to understand. It occurs when a property owner gives explicit consent to use the property. For example, you become an express easement holder when you buy a property in a real estate transaction that includes a prior recorded easement.

Prescriptive Easement Occurs After Repeated Unauthorized Use

If you have heard of squatter rights, you understand the basics of a prescriptive easement. In many areas of the legal system, a practice becomes a reality when you do it long enough.

In Arizona, a person gains a prescriptive easement when they have used private property for a specific purpose for 10 years without authorization or a legal challenge. To qualify, the use must be:

• Open: The act must occur in plain sight without an attempt to hide it or perform it in secret.
• Notorious: This doesn’t mean the action is hostile (though it can be). Rather, it refers to something that the entire community can acknowledge.
• Without permission: The person or people do not have implied or express authorization.

Still having trouble understanding when this could happen? Imagine that one neighbor uses your driveway to access their garage. You never object, everyone can see it happening, and you allow it for 10 years.

What happens if you sell your home? The new owners may object to the neighbor using their driveway, but the courts may grant legal access based on this prescriptive easement principle.

Affirmative and Negative Easements Involve Someone Else’s Property or Your Own Land Use

You can also distinguish between an affirmative easement, which allows an action on another person’s property, and a negative easement, which prevents a property owner from acting in a certain way on their land.

Negative easement disputes are rare. However, one example includes a landowner who wants to remove public utilities, like power lines, from their property.

Easement Appurtenant Grants Owners Neighboring Land Use Needs

When you are discussing easements vs. rights-of-way, an easement appurtenant sounds like a complicated concept. However, it simply means that one landowner can use a portion of another person’s land for a specific purpose. For example, if the only way a neighbor can access a public road is by using your driveway, they have a legal right to use it.

Private and Public Rights-of-Way: Why They Matter for Property Owners

While an easement deals with a wider range of designated purposes, like working on utility lines, a right-of-way deals solely with access for transportation purposes.

Private Rights-of-Way Restrict Use to Specific People

In this form of a right-of-way, only a limited number of people or a particular person has access to private property or use of someone else’s land. One common example includes a shared driveway split evenly between two properties. Both owners have a legal right to drive on it, but random strangers do not.

Public Rights-of-Way Allow Access to Everyone

In a public right-of-way, the population at large can legally use a specific area for walking or driving. The sidewalk outside your home may intersect your property, but you cannot restrict access to anyone.

You can consider many public areas a right-of-way. They are often managed by the government or other organizations using taxes or other common funds. As such, certain laws and regulations can restrict access through zoning laws, speed limits, and related legislation.

When To Call a Real Estate Attorney for Help

Now that you can compare an easement vs. a right-of-way, when should you call a lawyer to advocate on your behalf?

• An unrecorded utility easement prevents you from developing the land.
• Two property owners disagree about whether to make improvements to a shared driveway.
• One neighbor builds a fence that prevents access to sewer lines, other utilities, or a public area.
• Someone claims they have a prescriptive easement based on long-term usage of your property.
• You have a written agreement about an easement and using another person’s property, but the language is vague.
• Two neighbors dispute the property lines and need to know the exact location to erect an improvement.

Book a Consultation With Experienced Property Attorneys Today

With a better understanding of easements vs. rights-of-way, you are now in a position to consider your next steps. Whether you are unsure whether a plot of land is open to the general public or you have easement problems with a neighbor, Anthony Law Group can help. We are experienced real estate attorneys who can advocate for usage rights, restrictions, and other legal agreements.

To schedule a consultation, call (602) 362-2396.