Right-of-Way Easements in Maine

By Elliott R. Teelertlaw@gmail.com

Introduction

This article looks at right-of-way easements in Maine. Right-of-way easements are a common type of easement in the state, and this article is meant to provide a basic overview of this legal right, how the right comes to be, who holds it, what it provides and how this right can be lost. An easement, at its most basic, provides a non-owner of a piece of property certain rights over that property. There are several different types of easements, they can be created in different ways, and they can be extinguished as well. An example of a right-of-way easement would be when the general public is allowed to cross over private property to access a shoreline. In Maine, often people are unaware that the reason they are able to reach a shoreline (be it the ocean, a lake, or a river), is because of a legally established right.

Someone looking to purchase or sell 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 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 affective to address the issues of easements before the transaction, than attempt to resolve them in court later on.

Establishment of a right-of-way easement

There are two basic ways a right-of-way easement can be established, first by express consent by the property owner, and second by prescription.

An express right-of-way is recorded in the deed of the property over which the easement is granted. This often occurs when the property is transferred, typically either by sale or gift, or after the owner passes away and is property is transferred with the easement pursuant to their will.

The express right-of-way will be described in the deed, though often with archaic language, and sometimes without fully setting out the exact nature of the right-of-way. References in the deed to certain landmarks on the property are meant to provide the location of the right of way, perhaps citing metal rods driven into the ground. However, other times the deed might state that the right-of-way is over the property with language such as “as has always been traveled.” Either way, as time passes these markers and traditional ways might be moved or changed. Legal disputes arise when, years after the right-of-way easement was granted, new owners or residents want to restrict the easement rights, or the easement holder attempts to expand or alter the right-of-way.

The second way an easement can be established is by prescription. A prescriptive easement is acquired through the continuous use of a right of way for a over a certain amount of time, and in a certain manner. The law on this issue is complicated, and establishing a legally enforceable right-of-way easement is very fact specific.

To establish a prescriptive easement the party must show that they have used the right-of-way continuously for at least twenty years, under a claim of right, though adverse to the owner of the land, but with the owners knowledge and acquiescence. Someone who has been using a right-of-way for over twenty years, and wants to make sure they will have the right to do so in the future, will typically require judicial action. Often this comes up when a property owner attempts to stop the use of the right-of-way, and the parties cannot agree on their own to allow the usage of the right-of-way.

With the nature of prescriptive easement, in particular the twenty year requirement, establishing the facts is essential. Anyone concerned about a right-of-way they have been using, or have let people use, should consult with an attorney before taking actions that might be seen as hostile to the other party. Wrongly assuming you have acquired an easement by prescription can lead to trespassing charges; and denying someone access to an easement they have acquired can result in fines.

What does a right-of-way easement provide?

A right-of-way easement grants the holder only the right to cross the land, but not to change the nature or location of the right-of-way. For instance, if a right-of-way was granted to allow foot traffic down to a beach, the foot path may not be converted into a paved road. While the holder of the easement can do basic maintenance of the right-of-way, they may not cause an undue burden to the land owner.

A right-of-way easement can only be moved if both parties agree, unless the deed indicates otherwise. While a right-of-way easement provides access simply from point A to point B, the exact route of the right-of-way can become an issue, even though over time the route may established by actual use. As noted above, even the express right-of-way easement may not be clear as to it’s exact location.

Disputes over the location and permitted use of the right-of-way are very fact specific. Important issues in determining the legal extent of the easement are the history of use of the right-of-way and the original intent in granting it.

Who holds the easement right?

An important issue concerns who exactly holds the easement right. When it is an express easement, the deed should specify who can use the right-of-way, and it can be granted to the general public, to a specific group of people, or even just an individual. The reasons for granting the easement can help in understanding who is to benefit from it, and the grantor’s intent can become important if legal disputes arise later.

Aside from access to waterways, easements are often used to access public roadways. A common situation where easements arise is when a piece of property is divided, and only one of the sections has access to a public road. In this instant, an easement is granted so that the owners of the piece of property that does not have road access, can cross the other property to get to the road.

In a situation where a landowner needs to cross another’s land, typically the easement will pass to new owners of the land, but that is not always the case. There are two ways an easement can be held, either “in gross” or “appurtenant,” the former meaning it is limited to an individual, or specific group, the latter is tied to whoever owns the land that needs access.

In a case where a new owner acquires land in which the past owner relied on a right-of-way to access, but the easement is “in gross,” the new owner may not be able to use that right of way. In this instance, unless the new owner can show a “strict necessity,”  meaning there is no viable alternative (and the land to be accessed was once part of the other property), then they will have to find a new way to access their newly acquired land. This is a great example of why it is crucial for anyone looking to buy land has a thorough title search done to ensure that the right-of-way comes with the land.

Abandonment of the easement

An easement right acquired expressly or by prescription can be lost. However, it takes a clear intent to abandon the right-of-way, including non-use, and the property owner needs to take action to show they are not permitting the right-of-way anymore. Both of these must occur before the easement is abandoned, absent a recorded written agreement of both parties removing the right-of-way.

An actual example of an abandoned right-of-way occurred when a property owner constructed a house on top of the right-of-way, which had not been used for years, and the easement holder did not object. Abandonment was found in that case, though generally the courts have been reluctant to make a finding that an easement has been abandoned.

Summary

It is crucial for land owners and perspective buyers of land to be aware of the issues involved with right-of-way easements. These easement are found all over Maine, they provide a way for people to enjoy access to areas, often public areas, that otherwise would be limited to private land owners. While property owners may be wary of allowing others to cross their land, in a state such as Maine where there is an abundance of natural resources, it ultimately benefits everyone to provide access to these special places.


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14 Responses to Right-of-Way Easements in Maine

  1. sdhodgkin says:

    I own the first house on a private road. There is an easement which allows the seven other houses on the road access to the main public road. I own the entire length of the private road. My neighbors are interested in forming a formal road association in order to purchase insurance and presumably give them more power to collect maintenance fees. My question is this: since I own the property should i be included in the association? I’ve been paying an equal share of the maintence since purchasing the house and i plan to continue. Are the owners typically included in these types of associations?

  2. I have 2 right of way easements for well water on my property. They are both dug wells. I’m wondering if, as the landowner, I have a right to put a hand water pump on these well casings for water access for my garden and animals.

    • Elliott Teel says:

      Carroll,

      If the wells are on your property, you should be able to install pumps to use the water. As long as you are not restricting the access to the well by those who have the easements, there should not be a problem.

      Feel free to contact me if you have further questions.

  3. Bekah Quere says:

    Hi, an aquaintance asked me to research this as she does not have a computer. She owns property on which there is a right of way to access other properties. She is having an issue with folks driving “too fast,” which is of concern as she walks on the road to access other areas of her property, she has a kid, etc. She would like to install a gate to slow people down as they would have to get out to unlock the gate (not sure if this would work;/), and thinks a lawyer in the past informed her it was within her legal right to do this, and she was wondering if this was still the case. Thanks for any assist.

    • Elliott Teel says:

      Bekah, Yes, they would be within their rights to install a gate. Generally the rule is that you can not unduly burden the easement holder’s rights. So as long as the people who have the right to cross her property can just open the gate and keep going, that would likely not be considered an unreasonable restriction.

      As with any legal issue, the specific facts of the matter will be needed to provide a complete answer.

  4. I purchased a house with land that blocks passage from a private development to the main road. I have a easement document that states the private development and anyone else can pass across my land to and from the private development.
    The route was once my driveway but has been expanded to become a road/driveway, from my understand there is no road association.
    I thought I read somewhere that the owner of the land is not responsible for maintaining the road that is an easement for other parties.
    The road existed before we bought the house but before the private development it was a driveway.
    Who is responsible for repairs or total road replacement of an easement? Is the owner?
    Also, in my case where my driveway became a road/easement for the private development, who is responsible for the repairs, upgrades or total road replacement?

    • Elliott Teel says:

      Vinny,

      Generally, yes the holder of the right-of-way easement is responsible for maintaining it. In a situation like yours, it is a little more complicated because you use the road as your driveway.

      Under Maine law, if four or properties use the right-of-way, then you can form a road association and assess maintanence costs to the other owners. There are several steps you need in order to do this, but it my be the best way for you to handle this issue.

      Feel free to contact me directly if you would like assistance with this further.

      - Elliott

  5. damariscotta says:

    I own a property with an express right-of-way granted in my deed to a private road owned by an individual. Neighboring property owners also likely have the same right-of-way. Collectively, we have an informal road maintenance association that supports the owner’s maintenance of the road, but no formal association.

    I am refinancing my mortgage and the bank has asked for a copy of the formal road maintenance agreement, apparently to prove that an individual or entity has an obligation to maintain road access to my property.

    Timing will make it difficult to get a signed agreement in place among all of the property owners who use the road, so I am looking for other avenues to provide the bank with comfort that someone is required to maintain the road.

    Does the owner of the road have an obligation under Maine law to maintain it, given that he has provided me with a right-of-way?

    If he does not have such an obligation, do I have the right to maintain the road if he fails to do so? Your article indicates that “the holder of the easement can do basic maintenance of the right-of-way.”

    Can the road owner grant me the right to maintain the road?

  6. marklisa4953 says:

    I have a right of way to a camp that has been in use in the same location since the 1940′s. The deed does not describe the right of way other than to say it exists. Recently the property owner has sold land that part of the right of way is on and has built a new right of way around the recently sold land. The new right of way is much steeper than the old one. The person who bought the land where the old right of way was has now put up no trespassing signs. Am I stuck using the new right of way? Can I be charged with trespassing if I continue to use the old right of way? Thanks for any assistance you can provide.

  7. thehillcompany says:

    Hello,

    I’m about to purchase a rental property in Maine which parking for the building requires travel over a neighbors land – specifically his parking lot. The current owner of the property I’m considering has had tenants traveling over the land for 19 years and has been plowing the neighbors driveway for this privilege. I have a few questions:

    1. Since they have an agreement, I’m assuming this counts as “granting access” and nullifies any chance of getting a prescriptive easement or adverse possession? Does that sound correct?

    2. In your article, it mentions the term “strict necessity.” If there is no other viable alternative for parking – would a court consider my future tenants use of the neighbors parking lot to access my parking lot a strict necessity?

    Many thanks for your help,

    Josh Knight | 858.200.5401

  8. daca55 says:

    Hi, I have a question regarding a right of way that provides lake access for land owners who have a right to use it by language in their deed. Can a floating dock be placed in the water just in front of the right of way? The people who use the right of way know they cannot build or place a dock on the right of way so now they are going to anchore a floating dock in front of it. Can you tell me if this is legal.

    Thank you

    Bob

  9. danpride says:

    I am interested in contacting a lawyer who has an interest in Public Access to Lakes and related issues. My name is Daniel Pride. I am the son of Byron G Pride who was the largest lakefront developer in this area during the 50′s, 60′s and 70′s. His office was where the Blockbuster Video store now is in Windham.

    In all of his developments he created right of ways every five lots to the water which were left to “the people of the town of x and my Heirs and Assigns.

    Some 500 right of ways in all !!!

    I am the Heir and Assigns. Since then every single right of way has been illegally usurped and closed off by adjacent landlords. I am interested in pursing my legal interest in these properties. These include the town beach of Sebago which he donated in similar fashion and which has been without my permission conveyed largely to a private party, leaving only the mucky side of the altered sandbar to the kids of the town. This was done to provide the milfoil spreading marina which now occupies the North West River.

    Any assistance you can be would be appreciated.
    Dan Pride
    danielpride@yahoo.com

  10. o2bnme says:

    I am talking with a neighbor about how the right of way works. I purchased a vacant lot that has a private road along one edge (I own 50% of the road). The deeds for the properties on the road do not include any right of way verbiage that would grant them access through/over my property. I assume they have access via what you term a perscriptive right of way (but nothing has been decided via the courts, but if it went to court they would undoubtedly get an injunction to use the right of way legally)?

    If this is the case, what rights have I granted people? As I read what a ROW is, I have granted them access to drive down the road to get to their property? Have I granted this right to anyone in the general public? To people who want to visit property owners? To any contractor who has been hired to do work on the road? I assume the answer to all of these is, “yes.”

    The point of contention between my neighbor and me has more to do with the right to park on my property … whether some of the wheels of the vehicle are on my property.

    For starters, if I understand things correctly, nobody has the right to park in the road because it causes undue hardship for others who share the right of way.

    Then, if someone parks on what would be described as off the road onto my property or partially off the road onto my property, am I within my rights to ask him to move his car?

    Next, do I have to grant contractors doing work for my neighbors the right to park in a similar manner?

    My major reason for stopping people from parking in this area of my property is that during rainy days, the vehicles leave behind ruts, which, when it dries out, makes it hard for me to park there when I want to. And, ultimately will cost me money to grade out.

    Hopefully this is clear enough for you to respond to with assistance. Thank you.

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