Why Are You On My Land? Easements are Forever (Almost)

Easements Two Dogs
Easements Two Dogs
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Written By Anita Guyadin, J.D. Candidate 2015

Have you ever stepped out your front door and saw a neighbour walking through your property, or a city employee working on your yard? Are you tempted to tell them to get off your land? They may actually have a right to be there. An easement allows for one party to have a right in property entirely owned by another party (D.J. Donahue, P.D. Quinn and D.C. Grandilli, Real Estate Practice in Ontario, 7t Ed (QL).) This recognizes that some properties cannot be fully enjoyed without access to another property.Often this right (easement) covers a particular strip of land on the property, but the easement can sometimes cover the entire property (Ibid.). Easements can be for a right of way, right of support, a right to water, or a right to air space.  Easements are common for shared driveways, access utility poles on your property, common areas in a community, paths across a neighbour’s property to your home, scenic views and party walls in semi-detached homes.

Requirements for a Legal Easement

An easement must have a dominant tenement and a servient tenement.[1] The dominant tenement is the property that has the benefit of the easement, and the servient tenement is the property that contains the easement.[2]The easement can only exist if it is necessary for the enjoyment of the dominant tenement; it is not enough if the access is merely convenient.[3]The dominant and servient properties must be owned by different parties or owned in a different capacity by the same person.[2]If the same person owns the dominant and servient tenements, the easement merges and disappears.[2] It is important to note that the easement “runs with the land”, meaning when the land is sold, the rights and obligations of the easement are also transferred.[2]

There are four legal categories of easements: an express grant, an implied grant, easements of prescription and the doctrine of the modern grant.[2]

Express Grant

An express grant is the easiest type of easement to recognize. The owner of the servient property grants an easement to benefit another property or properties.  Grants of easements must be registered just like a regular transfer of land. [8] Verbal transfers are not acceptable.  Although subsequent transfer of the land does not require the easement to be specified, it is best to list the easement since it may be lost after 40 years under the Registry Act.[9] Easements should be noted on the title of both the dominant and the servient tenements so they can be visible on a title search.[9]

Implied Grant

These easements arise in law because they are necessary.[2]In order for the benefactor of the easement to have reasonable enjoyment of his or her property, he or she requires the use of someone else’s property. [12] For example, a person buying landlocked property would have an implied right of access to the road.[2] In addition, a person in a semi-detached home has a right to prevent a neighbour doing anything that would damage the support provided by a party wall. [12]

Easements of Prescription 

According to s. 31 of the Real Property Limitations Act, a prescriptive easement arises when a right is enjoyed for 20 years without interruption or consent by the landowner.[3] There are specific legal requirements before the court considers a right enjoyed without consent or without interruption.[18] For example, the easement cannot arise if the owner provides the user with permission every 20 years. [2]

In Ontario, land is being transferred from the Registrysystem to the Land Titles system.  A prescriptive easement cannot be formed on land transferred to the Land Titles.[2] However, any prescriptive easement formed before the transfer is still valid.[2]

Doctrine of the Modern Grant

The doctrine of the modern grant is “a legal fiction” created to soften common law rules that required proof of use from time immemorial before the continuous use requirement could be satisfied.[8]Since statutes now impose limitation periods for prescriptive easements, this type of easement is less relevant even if it is still available.[2]

Easement Concerns

An easement may not be used to access land that the easement was not intended to benefit when it was created.[3] In Gordon v Regan,[22] when the owner of the dominant tenement purchased an additional parcel of land to construct a garage, the Court did not allow the easement to be used for car passage to the garage.  In Jungle v Keetch[23] the benefactor of the easement could not use the easement to access lands he bought after the easement was created.

If owners of servient tenements complain about an increase in traffic over an easement, the courts resolve the matter by deciding whether the volume of traffic or the nature of the use was within the original contemplation of the parties when the easement was created.[2]If traffic over the easement increases, but the court determines it is not excessive, the terms of the easement will not be breached.[25]

Ancillary Rights

Ancillary rights recognize that an easement may also include specific rights to make the easement meaningful. [26] In Mackenzie v. Matthew, an easement to access island properties included the right to install a dock and a vehicle turn-around area.[27] In Fallowfield v. Bourgault, the court determined that  the right must be necessary for the easement, not just convenient or reasonable.[28]

Extinguishment

Easements are not easily removed. Jansons v. Iwanczuk determined that mere non-use by itself would not be considered a release.[29]. In Lywood v. Hunt the court determined that there must be some action by the owner of the dominant tenement that demonstrates an intention to abandon or terminate the easement.[30].It makes sense that the person with the benefit of the easement must be the one to release the easement. Such actions were displayed in Overs v. ten Kortenaar, where owners of the dominant tenement did not use a right of way for many years, and planted trees and installed a fence to block the easement.[31] In Fyfe v. James, the easement was not extinguished because an alternative way to reach the properties in question was created. [32].Easements may be extinguished if the servient land and easements are expropriated, or (as stated above) if the same party buys both the dominant and servient properties.[33]

Remedies

Abatements and actions are two methods available to provide remedies for disputes over easements.[34] An abatement (not the preferred approach in law) allows one party to remove the obstruction to the easement.[35] Examples of this include the owner of a dominant tenant removing an obstruction from a right of way, or the owner of the servient tenement removing any cause of increased traffic on the easement.  Relief by action is by far the preferred remedy and can produce damages (monetary benefits) or an injunction to prevent further breaches to the terms of the easement.[36]

Conclusion

Easements blur the line between property and ownership by dispelling the idea that ownership comes with complete and total control over land. Yet, its very existence is to protect property rights by ensuring all people have the reasonable enjoyment of their land and can be provided with crucial services, even if it involves other properties.

 

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References and Footnotes

  1. Ibid.
  2. Ibid.
  3. Ibid
  4. Ibid.
  5. Ibid.
  6. Ibid.
  7. Ibid.
  8.  Ibid.
  9. Ibid.
  10. Ibid.
  11. Ibid.
  12. Ibid.
  13. Ibid.
  14. Ibid.
  15. Ibid
  16. Ibid.
  17. Ibid.
  18. Ibid.
  19.  Ibid.
  20. Ibid.
  21. Ibid
  22. Gordon v Regan [1985] O.J. No. 2282; 49 O.R. (2d) 521; [1989] O.J. No. 3233,  71 O.R. (2d) 736 (C.A.) cited in Donahue, supra note 1.
  23. Jengle v. Keetch [1992] O.J. No. 425, 7 O.R. (3d) 187 (C.A.) cited in Donahue, supra note 1.
  24. Ibid.
  25. Rudolph Furniture Ltd. v 797574 Ontario Ltd. [1999] O.J. No. 2735; 123 O.A.C. 396; 90 A.C. W.S. (3d)  310 Cited in Donahue, supra note 1.
  26. Donahue, supra note 1.
  27. Mackenzie v Matthew [1999] O.J. No. 4602, 46 O.R. (3d) 21 cited in Donahue, supra note 1.
  28. [Fallowfield v Bourgault [2003] O.J. No. 5206, 68 O.R. (3d) 417 cited in Donahue, supra note 1.
  29. Jansons v Iwanczuk [1991] O.J. No. 801, 17 R.P.R. (2d) 308 cited in Donahue, supra note 1
  30. Lywood v Hunt [2009] O.J. No. 2101, 97 O.R. (3d) 520 cited in Donahue, supra note 1
  31. Overs v ten Kortenaar [2006] O.J. No. 822, 46 R.P.R. (4th) 118 (S.C.J.) cited in Donahue, supra note 1.
  32. Fyfe v James [2006] O.J. No. 325, 42 R.P.R. (4th) 221 cited in Donahue, supra note 1
  33. Donahue, supra note 1.
  34. CED (Ont, 4th), vol 21, Title 54 at ∮342. [CED]
  35. CED at ∮342.
  36. CED at ∮345.
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16 Comments

  • Reply February 22, 2016

    Bruce Posch

    Under the new Bill 100, the Ontario government uses the term “easement” to describe registering snow mobile trails across private land.
    This article describes the requirements for a legal easement, as needing both a dominant tenement and a servient tenement.
    If for example my property has a snowmobile trail across it, allowing the public to have access crossing my property, who would be considered the dominant tenement?
    I have a second question. If I have given a written permission to a trail club, over twenty years ago to cross my property,without re- signing it, would that be construed as a prescriptive easement? Would the following schedule force trail clubs to register an easement against my property?
    Bill 100, Schedule 1. Rules re easements
    12 (6)
    “an eligible body shall register the easement against the land affected in the proper land registry office and once registered, the easement and any covenants contained in the easement runs with the land against it is registered”

    I do not want to convey a registered easement to the snowmobile clubs. I want to know if I should revoke my permission to access my land before Bill 100 reaches second reading and Royal Ascent.

    • Hummingbird Lawyers
      Reply April 22, 2016

      Hummingbird Lawyers

      Bruce, thank you for the inquiry.

      In respect of your first question, the Dominant Tenement would belong to those who have the right to use the easement (the trail) on your land, which land would be considered the Subservient Land.

      As for the second question, it is difficult to give a definitive answer without conducting further inquiries, such as searching title see what is registered on title, reviewing the written permission you gave to the club twenty years ago, knowing if the trail is still being used and by whom, etc.

      In this regard, we encourage you to contact us to arrange for an appointment to discuss your matter further.

  • Reply April 27, 2016

    Ronald Cudney

    We bought a house with 1 acre of land through which a power line was installed on an “easement?” many years ago. The owners of the property severed the house and 1 acre parcel off after installing the power line and instead of moving the power line to the property that now houses the users of the hydro, they simply had the area of the line deemed “easement.” I cannot reasonably access the other side of my property because there is a power pole in the way. I have been trying to convince the neighbours to put the power line on their own property and connect to the main line adjacent to their property at the road?

    • Hummingbird Lawyers
      Reply April 29, 2016

      Hummingbird Lawyers

      Thank you for your question. Easements are complex real property matters and a full review of your deed to land and survey would be required before we would offer you a substantive answer. We invite you to book a consultation with one of our real property lawyers

  • Reply May 2, 2016

    Vic

    Question:

    We have 3 properties A, B, & C with Grants of easements registered.
    A is to the south of B. B is between A & C on the north. C borders the open 66-foot Right Of Way on the north.
    There were registered Express Grants on these three properties with A the dominant property, with B & C the servient properties.

    1) Can B & C title holders Quit Claim the servient easement on the B & C properties without the knowledge of the title holder on dominant property A?

    Also, an unopened 66 ft. road allowance borders these three properties along their west side extending between the open 66-foot road on the north and the open 66-foot road to the south.

    2) Could this unopened road allowance be closed by the municipality when it had been opened, and the southerly part of the road allowance, that is still further south of the dominant tenement property A, remains open?

    • Hummingbird Lawyers

      (REPLIES IN FULLCASE)

      EASEMENTS RUN (BELONG) WITH THE LAND AND NOT WITH A PARTICULAR PERSON, SO I AM UNCLEAR AS TO WHO THE QUIT CLAIM DEEDS WOULD BE TRANSFERRED TO AND THE PURPOSE OF THE DOING SUCH A TRANSACTION? IN ORDER FOR US TO GET A FULLER UNDERSTANDING OF YOUR LEGAL QUESTION AND TO PROVIDE A MEANINGFUL REPLY, PLEASE BOOK A CONSULTATION TO DISCUSS FURTHER.

      Also, an unopened 66 ft. road allowance borders these three properties along their west side extending between the open 66-foot road on the north and the open 66-foot road to the south.

      2) Could this unopened road allowance be closed by the municipality when it had been opened, and the southerly part of the road allowance, that is still further south of the dominant tenement property A, remains open?

      ​MUNICIPALITIES CAN CLOSE PUBLIC ROAD, DEPENDING ON THE CIRCUMSTANCES SURROUNDING IT. THESE ARE DONE UNDER STOPPED-UP AGREEMENTS. I AM NOT CLEAR ON THE SECOND PART OF YOUR QUESTION, ARE YOU ASKING IF THE MUNICIPALITY CAN DETERMINE WHERE THE PUBLIC ROAD STARTS AND ENDS? AGAIN, IN ORDER FOR US TO GET A FULLER UNDERSTANDING OF YOUR LEGAL QUESTION AND TO PROVIDE A MEANINGFUL REPLY, PLEASE BOOK A CONSULTATION TO DISCUSS FURTHER.

  • Reply June 10, 2016

    Troy

    I am servient property owner. The easement that exists on my property was for access to the neighboring property.Over time, the neighboring property acquired its own private lane way. Now due to the need to have a fence for some privacy and to reduce the temptation for traffic to use my neighbors guests to exit through my lane way , I would like to have the easement lifted. Would this qualify as a cessation of easement?

  • Reply July 1, 2016

    Dan Nelson

    Hi
    We recently purchased a property at the end of a road within city limits. It appears that there is no road allowance on the road frontage side of the property. At the end of the road there is a trail that has been used for years (I presume) that appears to be on our property. There is only unused Crown land past our property and the property across the road from us is owned. The road itself is a paved city road which has apparently encroached on several properties. My first step is to get an official survey done to determine exactly where the property line is but if it is as I suspect can I stop people from using the trail due to potential liability issues?

  • Reply July 17, 2016

    DC

    We own the a row house, an “end unit” in a group of five row houses. The houses are over 100 years old and the owners from time to time have a right to pass over a certain part of my property, including a driveway on the left side of the house, leading to the street. Given the right is written specifically for the benefit of the owners of the four other owners, does the law allow them to give all their friends permission to pass through my backyard to get to theirs because it’s easier to go through my yard than walk through their respective houses? Mine is the only yard with access to the street. The language in the title document is very broad and does not restrict the purpose of the passage, however, do the owners have the right to expand the reach of the easement on my property to anyone who might be making social calls and visiting them in their back yard?

    • Ashley Singer
      Reply August 17, 2016

      Hummingbird Lawyers - Andrew Fortis

      Thank you for the inquiry DC. Without having the benefit of reviewing title to your property and that of your neighbours, we cannot be certain whether or not your neighbours’s friends can walk through your drive-way. If the title documents do not allow them to do so, you would want to stop this activity occurring immediately, for if the title documents do not allow such passage on your driveway, yet you allow it, an easement may arise through prescription.

      Again, for us to be certain, we would need to review what is on title and what is permitted. Please feel free to book a consultation with one of our real property lawyers and don’t forget to bring your deed and survey.

  • Reply July 28, 2016

    Gabe

    I have a cottage in Parry Sound Ontario with a deeded right of way, do I have the right to maintain and repair the road due to wash outs or is it the owners responsibility.

  • Reply October 7, 2016

    Bob Nuttall

    Good article – I have found it challenging to find information regarding rights of way in Ontario. In the case where there is a legal right of way registered with the LRO:

    What are the general obligations of the dominant tenements with respect to maintenance/snow removal for the right of way road?

    Who bears legal liability in event of property damage or personal injury resulting from use of the right of way road? If the dominant tenements have liability, should such risks be mitigated through insurance coverage?

    The servient tenement has re-routed a portion of the right of way road and obstructed the registered right of way road. What action is recommended in order to ensure that a legally registered right of way to access the dominant tenement property is preserved?

  • Reply January 12, 2017

    KM

    I was told that if you have an easement because you have a power line that runs on your land you are able to extend onto Crown land. Is this true?

    • Hummingbird Lawyers
      Reply March 13, 2017

      Hummingbird Lawyers

      Hi KM,

      If you have a power line that runs on your property, that would be an easement in favour of a third party – most likely a power company. Your property would be “subject to” the easement.

      We would doubt that the power company for which the easement is in favour of is related to the Crown or its lands. So, we don’t think your property or any further personal rights would be extended to you on account of this.

      That said, we could only give you a definitive answer by searching your title and reviewing it along with your survey for the property. Feel free to contact us for an appointment.

  • Reply February 15, 2017

    Angela Tessaro

    “The easement can only exist if it is necessary for the enjoyment of the dominant tenement; it is not enough if the access is merely convenient”. Does this apply in BC or only in Ontario? What is the referece for this?

  • Reply November 1, 2017

    Katie

    the only off street parking at my home is a large lot behind the house, but the only way to access this is through a driveway owned by the neighbors. how do i find out if there is an easement or right of way that allows me to drive on it to access my lot

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