What's the difference between an "Easement" and a "Right of Way"?

There are occasions when it becomes valuable to know the difference between an "easement" and a "right of way" when buying or selling real estate.   

All properties have a common easement associated with it, in one form or another.  For example, a utility easement is one in which the water, sewer, natural gas and/or electric utilities are found which supply your house.  They are commonly located in the front, rear or sides of a property. 

If you live in the Capital Region of New York State, the town, city, county or State of New York plows the snow from the road surface and pushes the snow over to the side (and, consequently, in your driveway!).  This is permissible due to the easement found in front of your home.  

When buying a property (particularly acreage), "due diligence" suggests the prospective purchaser identify whether there are any easements or rights of way associated with any part of the property.  This can be identified on a stamped copy of a survey map.  The presence of an easement or right of way may be be denoted on a municipal tax map. However, a prospective property buyer should not rely upon a municipal tax map alone to make this determination.  Discuss this matter with a competent real estate broker or competent real estate attorney.

Here are some brief definitions that may be helpful:

Easement

An easement allows someone other than the property owner the right to use the property.  Usually, the easement granted is for a specific person and usually for a specific use.   For example, you might allow a person the right to ride their ATV's on your property during a certain time of the year or allow them access to a stream or pond for fishing.   

Easements are typically found in one of two categories:  "Affirmative" and "Negative".  Affirmative easements allows for a specific activity to be carried out on another persons land.  A "negative" easement prevents an event or occurrence on an owned piece of land.  

Gross Easement:  This is typically set up for a specific individual.

 
Appurtenant easement:  This is often set up for the benefit of adjoining pieces of land. 

Affirmative easement:  This allows a third party to use the property for an identified purpose. 

A Right of Way allows a third party to pass through your property, however, they cannot use the land that they do not own.  In clear terms, someone can travel on your private land to another parcel or destination.  Utility companies often have rights of way so they can maintain or repair their utility lines.  

Easements and Rights of Way can be granted in documents such as a will, a deed or a contract between parties.  Easements and Rights of Way do not contain any ownership clauses, simply the outlined rights agreed to by the property owner.

Easements can be terminated after an agreed upon period of time, unless it is conveyed in a deed which likely will remain with the land.

Easements and Rights of Way can affect property's value and marketability.  You may experience difficulty in selling the property in the future by granting either.  This matter should be carefully considered with a competent real estate attorney prior to any agreement entered in to.