Teel Law Office, LLC ~ Portland, Maine

Right-of-Way Easements

Right-of-Way Easements

This article provides an overview of right-of-way easements in Maine. Right-of-ways are a common type of easement in the state, and this article provides some of the basics of this legal right including how the right is established, who holds it, what it provides and also how this right can be lost.

An easement, at its most basic, provides certain rights to a person or group (the “easement holder”) to use a piece of land that is owned by another (the “burdened estate”).  There are several different types of easements, they can be created in different ways, and they can be extinguished as well.

There are two broad ways that a right-of-way easement can be established, first by express consent of the owner of the burdened estate, and second by operation of law.  The existence of an express easement can usually be discovered by research in the registry of deeds of the county the property is located.  But an easement established by operation of law requires investigating for evidence on the land itself, and talking with people familiar with the land to find out if it is or has been used by those other than the owner.

Right-of-way easements can be a wide highway, or just a simple path.

Right-of-way easements can be a wide highway, or just a simple path.

I. Express Easement

An express right-of-way easement should be recorded in the chain of title of the burdened estate.  This can be done by including the specific language of the easement in the deed of the burdened property.  If the details of the easement are described in a separate document or in the deed of the benefited land, then reference to the easement language should be in the deed of the burdened estate.  However, the lack of the easement language in subsequent deeds does not terminate the easement.

Paper Streets – When subdivisions are planned, the developer or owner of the land often retains the land that makes up the roads within the development, and grants express easement rights to the purchasers of the houses or building lots to use the roads.  However problems come up when the planned development is not fully completed but rights have been granted to roads that are depicted only “on paper”, i.e., the plans for the development.  There are Maine statutes that attempt to address this issue.

II. Non-Express Easements

When the easement rights are not provided for in a deed or other written document, an easement can be established by use or the history of the property at issue.  If this right is disputed, the party claiming it must go through the courts to obtain a judgment that provides the scope and rights of the easement.

A common way in which a non-express right-of-way easement is established is by the prescriptive use of the land of another.   Someone who has been using a  way for over twenty years, and wants to make sure they will have the right to do so in the future will require a Maine court to rule that a prescriptive easement has been established based on the historic facts.

This legal right is similar to a claim of adverse possession, which is when a party claims title to a parcel of land based on at least twenty years of use.  A prescriptive easement only establishes the right to use the land as it has been used for over the prescriptive period, but does not take the actual title of the land away from the landowner.

An implied easement is created when a landowner conveys a portion of their land, and the owner of the conveyed portion of land establishes that they have the right to cross the grantor’s remaining land.  An implied easement can be established in a couple of ways.  An implied quasi-easement arises when a landowner conveys a parcel of land but retains all the surrounding land, and there is the intent that an easement exists to cross the remaining land of the grantor.  An easement by necessity is generally created when a landowner conveys a portion of land, but retains all the land surrounding the conveyed parcel, and there exists no access to the conveyed land.

III.    What Rights Does a Right-of-Way Easement Provide?

A right-of-way easement grants the holder only the rights as stated in the express easement or granted by court order.  Typically the right is simply to cross over the land of another.  The easement holder does not have the right to change the nature or location of the right-of-way.  For instance, if a right-of-way was explicitly granted to allow only foot traffic down to a pond, that foot path may not be converted into a drivable road.

Exactly how a right-of-way can be used can become uncertain years after the easement was originally created and the original parties that established it are no longer around.  Disputes arise when the holder of the easement wants to use the way in a broader manner than has been done in the past.  In many instances the language of the easement is not specific as to the exact scope of how the way can be used.

When an right-of-way has been created by deed or prescriptive use, once the location of the way is established typically it can only be moved by consent of both the easement holder and the owner of the burdened estate.

The issue of maintenance and who is responsible for having it done and pay for it depends on who is using the way.  In the common a situation where an easement holder’s driveway crosses the burden estate, and the holder is the only user of the way, then the easement holder is responsible for the maintenance and it’s costs.

IV. Who Holds and Who Benefits from the Easement Right?

An important issue with easements concerns who exactly holds the easement right and who can enjoy it.  When it is an express easement, the language should specify who can use the right-of-way.  It can be granted to the general public, to a specific group of people, or even just an individual.  In cases where the easement is granted to the general public that would typically be clearly stated.  But in many instances who benefits from the easement, and if it is to remains in the chain of title is not clear.

There are two ways an easement can be held, either in gross or appurtenant  to the land.  Easements that are meant to provide benefits to the owner of a parcel of land, regardless of who is the owner the that land, are called appurtenant easements This is the more common situation, and ties the easement to the land, not a specific individual or group.  This means the easement holder is the owner of the benefited land (often abutting the burdened estate), and when that land is conveyed the easement rights go to the new owners.

Easements in gross are provided to specific individuals (or companies) and are not tied to a parcel of land.  This is uncommon with right-of-ways, but it does come up on occasions.

Easements in gross or appurtenant cannot be conveyed to a third party.  The holder of the easement has limited rights to use the burdened estate, and cannot give or sell them to someone else separate from the  intended easement holder.  On the other hand, the owner of the burdened estate can usually grant rights to other people to use the same right-of-way.

V. Termination of the Easement

An easement right acquired expressly or through operation of law can be terminated.  Depending on how the easement was created, there are different ways that it can be terminated.  The holder of the easement can expressly give it up their easement rights, but it must be done in writing and should be recorded.

In general simple non-use of the right-of-way does not terminate the easement, but an easement can terminated by abandonment under certain conditions.    A right-of-way that is not used or claimed for a long period of time can be considered abandoned if the common law elements are shown.

In the event that the title to the burdened land and the land of the holder of an easement are conveyed to the same person, the ownership has merged, and therefore the easement no longer exists.   This is simply because the basic principle of the right-of-way easement is a right to cross over the land of another, and you don’t need the right to cross your on land.

In a situation where an easement has been established after the entering of a mortgage agreement for the property, if that mortgage is foreclosed on then the easement will be terminated.  This is part of Maine’s foreclosure statute.  This law does not affect easements that pre-date the mortgage.


It is crucial for landowners and prospective buyers of land to be aware of the issues involved with right-of-way easements.  These easement are found all over Maine, and they provide a way for people to enjoy access to areas, often public waters, that otherwise would be limited to private landowners.

Someone looking to purchase land in the Maine should ensure that a proper title search is done to find out if there are easements over the land, or if the property enjoys easement rights over another property.  It is better to know beforehand if there are easements involved with the property so that all parties to the transaction are aware of any implications the easements might have.  It is more cost effective to address the issues of easements before the transaction, than attempt to resolve them in court later on.  An undisclosed easement that has a material impact on a property can become a liability to the seller of the burdened property.


Copyright 2017, Elliott R. Teel.  All Rights Reserved.   This article may not be reproduced without written authorization.

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