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- 5 min read
Right of way easement: what it is and implications for a real estate transaction
A right of way easement can turn what appears to be a straightforward real estate transaction into a complicated negotiation.
For sellers, an undisclosed easement may lead to requests for a price reduction or, in more serious cases, a request to terminate the contract. For buyers, it can mean taking on restrictions on how the property can be used that were never clearly explained beforehand. For an agent, failing to identify an easement during the valuation process can result in disputes over the agency fee and professional liability that can be difficult to manage.
Let’s take a closer look at what a right of way easement is, how it is established and what it actually means in a real estate transaction.
Table of Content
What is a right of way easement: definition and legal basis
Difference between a right of way easement and a personal right of way
Rights and responsibilities of the servient and dominant properties
How a right of way easement is established and terminated
Right of way easements and real estate transactions: what agents need to know
Why choose Engel & Völkers for a real estate transaction involving an easement
What is a right of way easement: definition and legal basis
Article 1027 of the Italian Civil Code defines an easement as a burden imposed on one property for the benefit of another property owned by a different party. A right of way easement therefore refers to the right to cross another person’s property (the servient property) to access one’s own (the dominant property).
The key point for buyers is that an easement is a property right: it attaches to the property, not to the individual, and remains with the property whenever ownership changes. Whoever purchases a servient property takes on the burden; whoever purchases a dominant property acquires the right.
Difference between a right of way easement and a personal right of way
This is a distinction that is often misunderstood but is crucial. An easement is a property right: it transfers with the property and, if registered, binds all future owners. A personal right of way, on the other hand, arises from an agreement between individuals: it binds only the parties who entered into the agreement and does not automatically apply to subsequent buyers.
In practice, an oral or written agreement between two neighbours allowing one party to cross the other’s property, if it is personal in nature, ends when ownership is transferred and does not follow the property. A duly established and registered easement, by contrast, remains in force. During due diligence, this should be checked through the land registry records, where a registered easement will appear.
Rights and responsibilities of the servient and dominant properties
The owner of the servient property must allow the right of way and may not obstruct it or make its exercise more difficult. They may fence the property or install a gate, but only if they provide the person entitled to the right of way with the necessary keys or remote control. Where the legal requirements are met, they may request that the route be relocated to another part of the property, provided that access remains equally convenient for the owner of the dominant property.
The owner of the dominant property may exercise the right of way within the limits established by the deed creating the easement and may not place an additional burden on the servient property, for example by using the right of way more intensively than originally provided for. As for maintenance costs, Article 1069 generally places them on the dominant property, as the main beneficiary of the easement; however, if the right of way is useful to both properties, the costs are shared in proportion to the respective benefits.
How a right of way easement is established and terminated
A right of way easement may be established by contract, will, adverse possession or destination of the owner; it may also be compulsory, imposed by law when a property is landlocked, meaning it has no access to a public road.
An easement is primarily terminated through 20 years of non-use (failure to exercise the right for twenty years), merger (when the dominant and servient properties come to be owned by the same person) or waiver by the holder. Determining whether an easement is still in force or has expired is part of the due diligence process: an easement appearing in the land registry records may have effectively expired, but its formal cancellation still requires verification.
Right of way easements and real estate transactions: what agents need to know
The presence of an easement can affect the value of a property: a servient property may be worth less because of the burden it carries, while a dominant property may be worth more because it benefits from guaranteed access. In both cases, the easement should be disclosed transparently to the buyer.
The seller has a duty to disclose, and an agent who fails to identify or properly disclose an easement may face liability: an undisclosed easement that comes to light after completion can lead to disputes, requests for a price reduction or claims to terminate the contract. The best way to protect all parties is to address the matter beforehand: identify the easement in the land registry records, clarify its nature and scope, and ensure it is correctly included in the preliminary agreement and the final deed of sale.
Why choose Engel & Völkers for a real estate transaction involving an easement
A right of way easement is not necessarily an obstacle to a sale, but it should be handled with transparency and expertise from the earliest stages of the negotiation.
Engel & Völkers consultants verify the existence of easements and other restrictions as early as the property valuation stage, support the seller in providing the appropriate disclosure to potential buyers, and coordinate with the notary to ensure that every aspect is handled clearly and properly documented. The goal is for both parties to reach completion with a full understanding of what they are signing.
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FAQ on Right of Way
An easement is a property right: it attaches to the property, transfers with ownership and, if registered, binds future owners. A personal right of way arises from an agreement between individuals and does not transfer with the property.
Yes. The easement remains attached to the property whenever ownership changes. Whoever purchases a servient property takes on the burden, while whoever purchases a dominant property acquires the right of way.
As a rule, the dominant property bears the costs, as it is the main beneficiary of the right of way. If the right of way benefits both properties, the costs are shared in proportion to the respective benefits. The deed establishing the easement may provide otherwise.
Yes, they can fence off the property, but they must provide keys or a remote control to anyone entitled to the right of way. They may not obstruct the easement or make its exercise more difficult.
Primarily through 20 years of non-use, by merger (when the dominant and servient properties come to be owned by the same person), or by waiver by the holder. Formal cancellation still requires verification.