If a right of way crosses private land, the person or entity that uses it — the easement holder — is generally responsible for maintaining it. The landowner whose property the easement sits on has a different job: not blocking it. That default flips only when a written easement or maintenance agreement says otherwise, which is why the recorded document should always be the first thing you read before any argument about who is responsible for maintaining a right of way easement.
The Default Rule: The Holder Maintains
When the easement document is silent on maintenance, long-standing property law puts the cost of keeping the right of way usable on the party who benefits from it. The Restatement (Third) of Property: Servitudes, which courts across the country rely on heavily, sets this out in Section 4.13 as a duty of repair and maintenance running to the easement holder.
In practice, that covers the ordinary work of keeping a right of way functional: filling potholes on a shared driveway, clearing fallen branches, grading a gravel surface, handling snow removal, and keeping drainage features working. The logic is simple. The easement exists because the holder needs it. The neighbor didn’t ask for a road across their yard, so the cost of keeping that road passable belongs to the person using it.
The duty cuts the other way too. The easement holder has to maintain the right of way so it doesn’t become a hazard or nuisance to the landowner. A drainage ditch you let clog until it floods your neighbor’s basement is your problem, not theirs. Neglect that causes erosion or flooding on the surrounding land can leave the holder on the hook for the damage.
What the Landowner Owes
The servient estate owner — the person whose land the easement crosses — has no default obligation to spend money on upkeep. Their core duty is non-interference. They cannot block the easement with a fence, pile materials on it, park across it, or do anything else that stops the holder from using it for its intended purpose. Courts have ordered property owners to remove obstructions, pay damages, or both when they’ve gotten in the way of an easement.
Beyond that, the landowner keeps full use of their property, including the area the easement covers, as long as that use doesn’t impair the easement’s purpose. Landscaping around a right of way, running irrigation under it, or building near it is fine until any of those things makes the easement harder to use.
The landowner also keeps paying property taxes on the land under the easement. An easement grants a right to cross; it doesn’t transfer ownership of the soil. The holder has no tax liability for the strip they travel over. If the easement meaningfully burdens the parcel, it’s worth asking the local assessor whether that burden is reflected in the assessed value.
When a Written Agreement Changes the Rules
Any default described here can be overridden by the easement document itself or by a separate maintenance agreement. Courts treat these like contracts. If the document says the landowner handles snow removal and the holder pays for grading, that is what governs, regardless of what the common law would otherwise require.
This is why reading the deed and any recorded easement documents matters before a dispute starts. Many easements were created with specific maintenance terms decades ago, and those terms are usually recorded with the county recorder’s office and bind future owners of both properties, not just the people who originally signed.
If you are creating a new easement or negotiating one with a neighbor, a maintenance agreement should at minimum cover:
- How repair and upkeep costs are divided — equally, proportionally by use, or assigned entirely to one party.
- Which party handles each recurring task: snow removal, grading, tree trimming, drainage work.
- How much advance notice is required before significant repairs, and whether the other party must approve the work or the cost.
- Whether the parties agree to mediation or arbitration before filing a lawsuit.
Record the agreement with your county. An unrecorded handshake deal works only as long as both of the original neighbors stay put.
Shared Easements and Splitting Costs
Things get more complicated when several properties share the same right of way, which is common with private roads serving multiple homes. If three households all drive over the same gravel lane to reach a public road, who pays when it needs regrading?
Without a written agreement, courts generally apply a principle called equitable contribution: everyone who uses the easement chips in, and the split reflects how much each party actually uses it. An even three-way division is not automatic. A household running a small business with daily delivery trucks puts more wear on the road than a retiree who drives to town twice a week. Courts look at frequency, intensity, and the kind of vehicles involved when sorting out each party’s share.
The landowner can be part of this equation too. If the servient estate owner also drives the easement road to reach their own garage or barn, they are a user like anyone else and can be required to contribute to maintenance. An Arizona appellate decision, Freeman v. Sorchych, held that shared users of an easement can be required to contribute to necessary maintenance even without a written cost-sharing agreement, with proportionate use rather than an automatic equal split as the measure.
Maintenance Is Not Improvement
The holder’s right to maintain the easement does not include a right to upgrade it. Filling potholes on a gravel road is maintenance. Paving that gravel road with asphalt is an improvement, and doing it without the landowner’s consent can draw a lawsuit.
The principle is that the holder can keep the easement suitable for its intended use but cannot change its fundamental character. Grading a dirt road, trimming overhanging branches, and replacing a deteriorating culvert all sit on the maintenance side. Widening the road, installing lighting, or adding an electronic gate go beyond what the easement permits unless the agreement specifically allows it.
Utility and Public Right of Way Easements
If a power line, gas pipe, or sewer main crosses your property, the utility holds the easement and is responsible for maintaining its own infrastructure. You are not expected to repair a sagging power line or clear brush from around a transformer, and the utility keeps the right to enter to inspect, repair, and replace its equipment.
What the utility does not maintain is the surface of your land. If a backhoe tears up your lawn to fix a buried water line, the company should restore the surface, but ongoing landscaping around the equipment stays your responsibility. You also cannot plant deep-rooted trees over a buried pipeline or build a shed on top of an underground easement; anything that interferes with access is off limits.
Public right of way easements along roads and sidewalks follow a different pattern again. The government entity — city, county, or state DOT — typically maintains the roadway itself, while adjacent property owners may be responsible for the sidewalk, curb strip, or drainage ditch in front of their property. Local ordinances control, and they vary considerably from one jurisdiction to another.
Liability When Someone Gets Hurt
Injuries on an easement produce a question that catches both parties off guard. Because the holder has the duty to maintain, they generally bear liability for injuries caused by poor maintenance: a pothole that wasn’t filled, ice that wasn’t treated, a collapsed section of road. The landowner can face liability for hazards they created or allowed on their own land that affect the easement, such as a dead tree that falls across the path or a drainage change that turns the surface into a sheet of ice.
Both parties should check their homeowner’s insurance. Standard coverage includes liability protection for injuries on your property, but the boundaries get blurry around easements. If you are the servient owner, an injury on the easement crossing your land may trigger your policy. If you are the holder, your maintenance obligation may create liability your insurer needs to know about. A short conversation with your agent is cheaper than a coverage gap discovered after an injury.
When the Other Party Won’t Maintain or Pay
Most easement disputes build slowly. One party stops contributing to road upkeep, ruts get deeper, and resentment compounds faster than the potholes. The path forward depends on whether a written agreement exists.
If a maintenance agreement spells out each party’s obligations and someone isn’t holding up their end, start with a written demand letter. Be specific about what the agreement requires, what hasn’t been done, and what you are asking for, whether that is reimbursement for costs you already covered or completion of specific tasks. Keep copies of everything. Courts give significant weight to documented communication when a dispute escalates.
If there is no written agreement, you are working with the default rules, which means the holder carries the maintenance obligation. A landowner who wants to force the holder to fix a deteriorating road, or a holder who has been doing all the work on a shared road and wants contribution from other users, has two main legal options:
- A suit for contribution — a lawsuit to recover another user’s fair share of maintenance costs already incurred. Courts can award money damages secured by a lien against the benefited property.
- An injunction — a court order requiring a party to perform maintenance, stop damaging the easement, or remove an obstruction. This is the right remedy when ongoing behavior needs to change rather than past costs recovered.
For smaller amounts, small claims court can handle contribution disputes without the expense of a full civil case. For ongoing problems, mediation is often faster and cheaper than litigation, and many courts will order it before scheduling a trial anyway. Easement disputes between neighbors tend to escalate quickly and settle slowly, so a clear written agreement put in place before trouble starts saves both parties far more than it costs.