Right of Way vs Easement: The Difference Explained

A right of way is a type of easement. An easement is any right to use land you do not own. A right of way is the easement that lets you travel across that land. Every right of way is an easement, but many easements are not rights of way.

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People use the two terms as if they mean the same thing, and in a deed for a private driveway they often do. The difference matters when you read a title report, a survey, or a tax sale listing. One word tells you there is some right on the land. The other tells you whether anyone can drive across it.

Short answer

An easement is the broad category. Cornell Law School's Legal Information Institute describes an easement as a nonpossessory interest in land. In plain words, the holder may use someone else's land in a limited way but does not own it. Easements cover many uses: power lines, drainage, shared wells, sewer pipes, and travel.

A right of way is the travel kind. The same source defines a right of way in property law as a right to cross land owned by someone else, usually under an easement. So the phrase "right of way easement" is not a third thing. It is simply an easement whose purpose is passage.

There is one more meaning to know. "Right of way" can also name the strip of land itself:

• The right. "My deed includes a 20-foot right of way across the Miller farm." This is an easement.
• The strip. "The fence sits inside the county road right of way." This is the corridor of land set aside for a road, rail line, or utility. A government agency may own that corridor outright or may only hold an easement over it. Federal highway rules at 23 CFR 710.105 count both full ownership and easements as real property interests.

Which meaning a document uses tells you who owns the ground and who may use it.

Side-by-side comparison

The table below compares an easement in general with a right of way easement. It reflects common rules across US states. Your deed and your state's law control the details.

The row that trips up most buyers is the fifth one. A parcel can have three easements listed on its title report and still have no legal way in. A utility easement and a drainage easement do nothing for access. Only an easement written for travel does.

Private vs public right of way

Private right of way

A private right of way benefits a specific parcel or a specific person. The classic case is a lane across a front lot that serves the lot behind it. The front lot is the burdened land. The back lot is the benefited land. The right is usually tied to the back lot, so it passes to each new owner when the land sells. Cornell's Wex entry calls such a right appurtenant.

Only the holder and the people they invite may use it. A neighbor two parcels over has no right to drive the lane just because it exists. Lawyers and title companies often call this kind of right an ingress and egress easement, which means the right to go in and come out.

Public right of way

A public right of way is open to everyone. Streets, county roads, highways, and sidewalks sit inside one. The Federal Highway Administration uses right-of-way as the general term for the real property acquired for a transportation project. The corridor is usually wider than the pavement. Iowa Code section 318.1, for example, counts the traveled way, the shoulders, and the land on both sides out to the right-of-way line. That outer land often holds ditches and a strip where utilities run.

A lot that touches a public right of way has frontage, and that is the strongest form of access a parcel can have. Our guide to deeded access explains how frontage and a written access right compare.

Right of way easement rules

The recorded document comes first. If it answers a question, that answer usually controls. Where the document is silent, state law fills the gaps. The general rules below apply in most states, but details vary.

Use

• The holder may use the right of way only for the purpose it was granted for. A footpath easement does not become a truck route.
• The holder must stay inside the described strip. If the document gives a width and location, those are the limits.
• The right usually serves only the parcel it was granted to. Using it to reach a second parcel the holder bought later is often not allowed. In Brown v. Voss (1986), the Washington Supreme Court called that a misuse of the easement.
• The landowner keeps the right to use the strip in any way that does not unreasonably interfere with passage. The California Supreme Court stated this rule in Pasadena v. California-Michigan Land and Water Co. (1941).

Maintenance

Many deeds say nothing about upkeep. In that case the general rule, stated in section 4.13 of the Restatement (Third) of Property: Servitudes, is that the party who uses the right of way is the one responsible for keeping it passable, and the landowner does not have to build or repair a road for the holder. When several owners share one lane, costs are commonly split by agreement or in proportion to use. California Civil Code section 845 writes both rules into statute. Some lenders ask for a written road maintenance agreement: Fannie Mae's Selling Guide, B4-1.3-04, calls for a legally enforceable maintenance agreement on a privately maintained street unless state law already assigns the duty.

Blocking

The landowner may not unreasonably interfere with a valid right of way. Parking equipment across it, plowing it under, or locking a gate without giving the holder a key are common examples of interference. Whether a gate with no lock or a cattle guard is allowed depends on the wording of the easement and on state law. In Gabriel v. Wood (1993), the Montana Supreme Court allowed a locked gate that the landowner reasonably needed, on the condition that the holders got keys and the gate was easy to use. A holder who is blocked can ask a court to order the obstruction removed.

A right of way can also end. It may be released in writing, merged when one person buys both parcels (California Civil Code section 811 lists this), or abandoned. An easement created by necessity can end when the necessity ends, as Cornell's Wex entry on easements notes.

Examples

Driveway across a neighbor

Ruth owns a five-acre lot behind her neighbor's house. Her deed includes "a 20-foot right of way for ingress and egress" along the neighbor's east boundary. This is a private right of way easement. Ruth may drive it, and so may her guests and delivery drivers. The neighbor still owns the strip, pays taxes on it, and may use it too. The neighbor may not block it. When Ruth sells, the buyer gets the same right.

Utility right of way

A power company holds a 50-foot utility right of way across the back of a farm. The company may enter to build, inspect, and repair its lines and to clear trees. The Public Service Commission of Wisconsin's guide to transmission rights of way describes this kind of easement as a contract that lets the utility build, maintain, and protect its line while the landowner keeps ownership. The right belongs to the company and is not tied to any nearby parcel, so it is held in gross and is not appurtenant. The cleared strip may look like a road, but the owner of the lot at the far end has no right to drive on it. A utility right of way easement gives access to the utility only.

Landlocked parcel

A parcel sold at a tax auction sits behind three road-front lots. The title search shows no recorded right of way and no frontage. This is landlocked property: the owner holds title to the land but has no legal route to reach it. An old two-track across a neighbor's field does not change that unless a deed, a court order, or state law backs it up.

Which one a landlocked parcel needs

A landlocked parcel needs a right of way, and a specific kind. A general statement that the land is "subject to easements of record" does not help. Neither does a utility or drainage easement. What the parcel needs is a recorded access easement for ingress and egress that is tied to the parcel and reaches a public road.

The law recognizes three main sources for that kind of right.

• A written grant. The owner of the land in front agrees to grant a right of way, usually for payment. This depends on a neighbor saying yes.
• Necessity. If the parcel and the neighbor's land were once one tract, a court may find an easement by necessity. Some states also have statutes for this. Florida, for example, sets out both a common-law and a statutory way of necessity in section 704.01 of the Florida Statutes.
• Long use. Years of open use without permission can ripen into a prescriptive easement in many states. Each state sets the number of years, as Cornell's Wex entry on prescriptive easements notes.

The first source depends on a neighbor saying yes. The other two usually mean a lawsuit, a survey, and attorney fees, with no promise of the result. Our guide on how to access landlocked property covers these routes in more detail.

For an heir who lives in another state, or an owner who bought the parcel at auction and has never been able to set foot on it, that can be more than the land is worth to them. If that is where you are, you can ask for a cash offer on the parcel as it sits, with no right of way and no easement in place. We buy landlocked land and take on the access problem ourselves.

Common questions

This is general information, not legal advice. Laws vary by state. Talk to a real estate attorney about your parcel.