Easement vs right of way: what is the difference?
An easement is a privilege to use land someone else owns for a particular purpose, not ownership of that land. A right of way is a strip used for passage, and it can be held either way: Virginia statutes call a private way across another's land an easement of right-of-way, while recording an approved subdivision plat transfers its platted streets to the locality in fee simple.
Right of way written on a deed, and on a recorded plat
Lay two documents side by side. One is a deed granting a way across a neighbor's field to reach the back of a farm. The other is a recorded subdivision plat with a street set apart between the lots. Both say right of way. The question worth asking is who owns the ground under each one.
For the deed in this picture, a grant of a way across a field the neighbor keeps, the word is easement. The Supreme Court of Virginia describes an easement as a privilege to use the land of another in a particular manner and for a particular purpose, and says it is not an ownership interest in that land. Virginia statutes use the phrase easement of right-of-way for a private way across the lands of another, which is the deed's situation. The neighbor still owns the field; the grant gives someone else the right to pass over it. The one-paragraph version of that idea is in the easement definition.
Under the plat, the answer is different. Recording an approved subdivision plat transfers to the locality, in fee simple, the part of the land the plat sets apart for streets, alleys or other public use, and transfers to the locality any easement shown on the plat to create a public right of passage. The street is no longer the subdivider's land at all. What a plat is, and what recording one accomplishes, is covered in what a plat is.
Ownership and upkeep are separate questions, though. Carroll County's posted subdivision ordinance (the April 14, 2014 copy) says there is no duty on the county to construct, maintain or improve such dedicated streets, alleys or public access. The same ordinance shows how the words overlap: it defines an easement as a grant by the property owner of the use of land for a specific purpose, and an alley as a public or private right-of-way. The short definition of the broader term is at right of way.
Three kinds of right of way, and who holds what in each
Most of the confusion clears once the ownership of the strip and the right to use it are kept in separate columns.
| Easement of right-of-way in a deed | Street dedicated on a recorded plat | Old road with no recorded fee right of way | |
|---|---|---|---|
| Who owns the strip | The owner of the land it crosses (the servient estate) | The locality, in fee simple, once the approved plat is recorded | Not settled by a recorded fee dedication; an attorney and a surveyor read it |
| What the other side holds | A privilege to pass for the purpose granted | The public's right of passage | Often described in VDOT survey guidance as prescriptive right of way or prescriptive easements |
| Who holds the right | The owner of the benefited tract, or the named grantee for an easement in gross | The locality | Depends on the road's history, which an attorney reads |
Where a property line sits along a road with no recorded fee
The difference between an easement and a fee strip stops being abstract at the edge of an old road, because it decides where a property line runs.
VDOT's survey manual carries guidance redrafted from a document the Department of Professional and Occupational Regulation's land surveyor board provided on property lines along public roads without recorded fee simple right of way. Roads of that kind, it says, are often described as prescriptive right of way or prescriptive easements. Where a deed calls for the center of the road, along the road or similar phrases, the guidance generally treats the monument as controlling, and the center of the road is the boundary.
Under no circumstance shall the property line be established as 15' from the center of the road without recorded fee simple dedication for public road purposes.
VDOT Survey Manual, Chapter 4
Read that as a warning against assuming a width, not as a width. No figure from it fixes the right of way on any particular road. How wide VDOT's right of way is on a given road is a question for the VDOT residency for that county, which for Carroll County is the Martinsville Residency, and where the property line actually runs is a land surveyor's work. Whether the road is in the state system at all is a separate check, set out in how to know if a road is state maintained.
Three questions that separate an easement from a strip owned outright
When right of way turns up in a deed or on a plat for land you own or are selling, three questions sort out which kind it is. None of them replaces an attorney's reading of the words.
Was a use granted, or was land conveyed?
A grant of the right to pass over land that stays with its owner reads as an easement. Language conveying the strip itself points the other way. Which one a particular deed's wording accomplishes is an attorney's call.
Is there a recorded subdivision plat setting the strip apart?
If an approved plat sets land apart for a street, alley or other public use and was recorded, that land passed to the locality in fee simple, and any easement shown for a public right of passage passed with it.
Does the right belong to a tract or to a grantee?
An easement that benefits the owner in using a particular tract is appurtenant and runs with that tract. One held by a named grantee or a successor, rather than by the owner of a benefited tract, is an easement in gross.
Knowing which kind of right of way reaches a parcel is also only half of knowing whether the parcel can be legally reached; the rest is in confirming a parcel's legal access. How easements are created in the first place, read, moved and enforced is gathered in easements, explained.
Right of way language on your deed or plat you cannot place?
Send the county, the tax map number and the wording as it appears, and Lowell will tell you what a buyer will ask about that strip and which professional answers it. No cost, no obligation.
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Questions this raises
Does a deed that grants me a right of way make me the owner of that strip?
Not if what it grants is an easement. The Supreme Court of Virginia describes an easement as a privilege to use another's land in a particular manner and for a particular purpose, not an ownership interest in that land, so the owner of the land underneath keeps it. Some instruments convey a strip outright instead. Which one your deed does depends on its exact words, and a Virginia real estate attorney reads them.
Who owns the land under a street shown on a recorded subdivision plat?
The locality, where the plat is an approved one that sets the street apart. Under Va. Code 15.2-2265, recording an approved plat transfers to the locality, in fee simple, the land the plat sets apart for streets, alleys or other public use. Owning it is not the same as maintaining it: Carroll County's posted subdivision ordinance says there is no duty on the county to construct, maintain or improve those dedicated streets. Confirm the current rule with the county.
Where this page's facts come from
Every rule, office and figure above traces to one of these. Rules change; check the office before you act on one.
- City of Norfolk v. Pretty Lake 5757 LLC (unpublished), quoting the Supreme Court of Virginia on what an easement is and when it is appurtenant Court of Appeals of Virginia
- Va. Code 55.1-304, definitions of dominant estate, servient estate and easement holder Virginia General Assembly
- Code of Virginia, Title 55.1, Chapter 28: gates and cattle guards on an easement of right-of-way Virginia General Assembly
- Va. Code 15.2-2265, recordation of an approved plat transfers streets to the locality Virginia General Assembly
- Subdivision Ordinance, posted April 14, 2014 copy (definitions; no county duty to maintain dedicated streets) Carroll County, Virginia
- VDOT Survey Manual, Chapter 4 (fee right of way, prescriptive easements, property lines along roads) Virginia Department of Transportation