Can a Lease Assign a Right-Of-Way to Another Party?

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We just bought 2.5 acres and the deed shows there is a right-of-way that is personal to one person, but the person’s family thinks the right-of-way is for the whole family (not just personal to the grandmother). The grandmother has now leased her land to her family and believes the they are now allowed to legally use the right-of-way under the new signed lease. Is this correct? Can a lease assign a right-of-way to another party without asking permission from the easement’s owner? Thanks.

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

I assume you are talking about the type of easement commonly called a “Right-of-Way.” That is, the right of a particular person or people to cross another person’s property via a “way” (a road, driveway, or other path). Typically, a right-of-way belongs to the owner of a particular property, and passes along with that property. This is known as being an easement “appurtenant” to the property, and this makes sense since the typical use for a right-of-way is to access your property from a road, and you would want whoever the owner is to have that access. Appurtenant rights typically benefit tenants, since they usually apply to the persons in possession of the property. However, it is possible for a right of way (or other easement) to be “in gross,” meaning that it belongs to a particular person, independent of whether that person is the owner of a particular property or not. Since you indicated this is the type of easement you are dealing with, the answer to your question is that it depends on exactly how the easement is written. The owner may or may not be able to assign her rights to someone else (such as a tenant). If she has that right, she would probably not need your permission; if she doesn’t, then it would simply be whether you are willing to grant permission to the tenants. If you haven’t done so already, I would advise you to consult with a local real estate attorney, since easement language can be complex and non-intuitive, and you’ll also want some advice about what you can (and can not, or at least should not) do to enforce your right to exclude the tenants.



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Author: House Attorney