Dedicated To Your Success
We offer seasoned representation to our clients that helps them achieve their desired outcomes on all real estate, business law and construction law matters

What You Should Know About Easements and Rights of Way

| Feb 4, 2016 | Real Estate Law |

If you aren’t sure what it means when a contract or document refers to an easement or “The Right of Way” you could end up in the midst of a transaction that carries unknown implications. In fact, if you aren’t careful, you could end up realizing those implications after the transaction is complete. To avoid such a consequence, study up now on the terminology and what it implies.

What Is an Easement or “Right of Way”?

In matters of real estate, easement refers to the right to cross or otherwise use someone else’s land for a specified purpose. In some instances, it is referred to as the “Right of Way.”

In truth, a property with an easement can change hands a hundred times, but not one of the owners will own the property outright 100%. The presence of an easement means that the designated portion referred to as the easement or “right of way” is not the property owner’s alone; it must be shared as designated by the terms of the easement. It could be that the local utility company has the right to access specified areas on the property in order to access/maintain pipe buried under the surface. It could be that neighboring properties have the right to access certain pieces of the property as a means of accessing their own properties. The presence of an easement grants other designated individuals or groups access to the specified property for specified uses.

Any valid property easement should (in most cases) be on record with the local assessor’s office. When performing a title search, the documented easement should appear in the results. It stays there indefinitely unless both parties agree to remove it.

In some cases, a property will include a “right of way” through the property. This frequently occurs in cases where a long driveway exists or a home that is set far back from the street. Previous negotiations may have been made to offer a “right of way” through the front of the property or driveway to access a second property with a separate owner. The first property is owned by one individual, but the owner of the second property has been granted the right to pass through the first property. The owner of the property at the time the easement was granted/negotiated may have received compensation, but upon transfer of the ownership, the easement carries over without additional compensation.

In some instances, the “right of way” through the property could come with some maintenance issues. It’s important to pinpoint who is responsible for maintaining the portion of the property designated as an easement: mowing the lawn, maintaining any fencing, shoveling in case of snow, etc. If there doesn’t seem to be any binding agreement regarding the maintenance of the portion of the property designated as easement, double check with the previous owner (or current seller if you are considering a purchase) to see if there was an unwritten agreement in the past. In some cases, the original easement or “Right of Way Grant” was worked out several owners previously, which can make the original intentions behind the grant and the intended handling of the arrangement difficult to ascertain. The quickest way to get a handle on the situation is to determine what has been the most recent “practice” in regards to the easement’s maintenance.

If you have recently discovered that a piece of property you own or a piece of property you are considering purchasing includes an easement or right of way, please get in touch with the southern California real estate attorneys at The Law Office of Retz & Aldover LLP today. We can discuss the implications of the easement with you and assist you in determining how it could affect your intended uses of the property.