Real estate attorneys specializing in easements, rights of way, and access issues handle legal matters related to the use and access of land. These issues can be complex and often involve property rights, disputes, and negotiation. Below is an overview of the key concepts in this practice area:

Easements

An easement is a legal right to use someone else’s land for a specific purpose, without owning the land. Common types of easements include:

• Easement Appurtenant: Benefits a specific piece of land (the dominant estate) and burdens another (the servient estate). For example, a right-of-way for accessing a road.
• Easement in Gross: Benefits an individual or entity rather than a piece of land (such as utility companies having access to maintain power lines).
• Prescriptive Easements: Acquired by continuous, overt, and adverse use of someone else’s land over a long period, typically 10-20 years depending on state law.
• Easement by Necessity: Established when a landlocked property needs access to a public road or another property.

Real estate attorneys may be involved in:

• Creating Easements: Drafting agreements that establish the rights and responsibilities of both parties.
• Enforcing or Challenging Easements: Representing clients in disputes over the use or scope of an easement.
• Terminating Easements: Resolving situations where easements are no longer needed or have been misused.

Right of Way (ROW)

A right of way is a specific type of easement, generally concerning the legal right to travel over someone else’s land, such as for a road, railroad, or utility line. This legal right can be granted in a variety of ways:

• Express Right of Way: Written agreement granting access over another person’s land.
• Implied Right of Way: Created when no formal agreement exists but access is necessary to use the property (e.g., landlocked property).
• Public Rights of Way: Government-granted access for roads or utilities that the public can use.

Real estate attorneys help:

• Draft Right of Way Agreements: Ensuring that the terms of access and usage are clear.
• Dispute Resolution: Addressing conflicts that arise when parties disagree on the use or scope of a right of way.
• Title and Ownership Issues: Ensuring that rights of way are properly recorded and honored by future property owners.

Access Issues

Access issues arise when a property is blocked, restricted, or lacks a clear route to a public road or other necessary resources. This can involve:

• Landlocked Properties: Properties without direct access to public roads, which may require the establishment of an easement or right of way to provide legal access.
• Encroachments: When structures or uses from a neighboring property extend onto another’s land, potentially restricting access or causing disputes.
• Zoning and Development Restrictions: Regulations that might limit or define how access to a property is granted or restricted based on local law.

Real estate attorneys focus on:

• Creating Legal Access: Establishing proper access routes for properties with limited or no direct access.
• Dispute Resolution: Mediating conflicts between property owners or between landowners and municipalities concerning access routes.
• Title Review: Ensuring that properties have proper access rights and that those rights are clearly documented in the title.

Dispute Resolution and Litigation

In many cases, disputes arise regarding easements, rights of way, or access issues. Real estate attorneys may represent clients in:

• Litigation: If an amicable resolution cannot be reached, a lawyer may need to litigate in court to protect their client’s access rights or challenge an easement’s validity.
• Mediation and Negotiation: Attorneys often help clients settle disputes outside of court, which can be faster and less costly.

Additional Considerations

• Title Insurance: Attorneys help ensure that title insurance policies adequately cover any potential easement or right of way issues.
• Property Development: If a developer needs to build on a property, a real estate attorney can help ensure that the necessary easements or rights of way are secured for infrastructure like roads, sewers, or utility lines.

 Real estate attorneys dealing with easements, rights of way, and access issues provide essential legal services to landowners, developers, and businesses. Their expertise ensures that property rights are clearly defined, disputes are resolved, and all parties understand their legal obligations and entitlements regarding land use and access.