Property Easements

Property Easements

Property Easements

What Are Property Easements?

An easement is the right of the owner of a benefit (dominant tenement) over another’s land (servient tenement).  The benefit afforded to the dominant tenement is a right to prevent the servient tenement not to do something, such as, not build a  structure on a driveway. What is interesting about easements, is that they do not involve ownership to any part of the land, but rather, only a right.  The easement is to exist for the enjoyment of the dominant tenement.

Easements are not straight forward issues and require a full title search and history of the use prior to being able to come to any definitive conclusions.  In the regard, if you have a specific question about an easement affecting your property, we encourage you to book a consultation. Regrettably, we cannot provide you with free consultations, but we can assure you that you will leave the consultation with a better understanding of your legal rights and obligations and possible remedies to you easement issue.

Contact Us Now For Easements Issues


Please note that the submission of this contact form or any other form of communication does not result in the creation of a solicitor-client relationship.

Written By Anita Guyadin, J.D. Candidate 2015, updated in 2018 by Hummingbird’s Real Estate Lawyer, Andrew Fortis.

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

Property ownership has become more complex as our living lifestyles have evolved.  In the suburbs, you will see large green electrical transformer boxes, or telephone boxes on front lawns.  In urban areas, you will see power-lines running parallel to fence lines in backyards, or shared driveways.  And those on ravine lots, you will see conservation easements restricting the interference with same.

Easements can be granted in several forms; by deed, by prescription (i.e. prolonged, uninterrupted use, etc.), by implication and by statute.  Once obtained, they will continue until such time as they are extinguished, which can be achieved in writing, when the dominant tenement and the servient tenement are owned by the same party, or extinguished by statute.

Express Grant

An express grant means that the right of way has been expressly granted and will be registered on title in the Land Registry Office. It is generally accomplished by owner of the servient property granting an easement to benefit another property or properties. Typically when a property owner severs a lot and creates a mutual driveway between the properties.  When the property is split, the express grant will be registered on title. Like all interests in land, the must be done in writing, verbal grants are not acceptable. Easements should be registered on title of both the dominant land as a “together with” in the thumbnail description and the servient tenements should be registered as “subject to”, so that the easement is properly recorded.

Implied Grant

The implied grant is a legal doctrine which provides that an easement will arise because it is necessary for the use and enjoyment of the property.   Take for example again a property owner who owns a lot and proceeds to sever it, but this time doesn’t register a easement for access and the severed lots is landlocked.  There will be an implied easement for access, as access is necessary for the use and enjoyment of the land

Easements of Prescription

A prescriptive easement arises when a right is enjoyed for 20 years without interruption or consent by the servient landowner.There are specific legal requirements before the court will consider a right to be enjoyed without consent or without interruption. For example, an easement by prescription cannot arise if the servient property owner provides the dominant user with permission every 20 years.

It should be noted that easements by prescription are limited to those properties which are registered in the Registry system as opposed to the land registered in the Land Titles system, as a prescriptive easement cannot be formed on land registered in Land Titles.  That said, a prescriptive easement which first arose under Registry can continue if the property has been converted to the Land Titles System.

Easement Concerns

An easement may not be used contrary to its intended to benefit when it was created. For example, an easement for foot travel does not include vehicle access.  If the servient owner complains about an increase or expanded use of an easement, the courts will resolve the matter by deciding whether the current use was within the original contemplation of the parties when the easement was created.  Thus, it is important to see the precise language of the easement and when drafting them, to ensure that it captures all of the intended uses.

Ancillary Rights

Ancillary rights recognize that an easement may also include specific rights to make the easement meaningful. For example, an easement to access island properties will include the right to install a dock and a vehicle turn-around area even though the easement doesn’t specifically provide so. The ancillary right must be necessary for the easement and not just convenient or reasonable.

Extinguishment

Easements are not easily removed. Non-use by the dominant owner is not sufficient to be considered a release of easement. There must be some action by the owner of the dominant tenement that demonstrates an intention to abandon or terminate the easement and only the dominant tenement can be the one to release the easement.

An example of an extinguishment of an easement is where an owner of a dominant tenement does not use a right of way for many years, and plants trees and installs a fence to block the easement.  Also, easements may be extinguished if the servient land and easements are expropriated by a third party or in the case where the dominant tenement and servient tenement are owned by the same party.

Remedies

Abatements and Actions are two methods available to provide remedies for disputes over easements.  An abatement (which is not the preferred approach) allows one party to remove the obstruction to the easement.  For example, where the owner of a dominant tenant removes 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. The moral here is do not engage in self-help remedies, for if you are wrong, you will put yourself in a worse off position.

Conclusion

Easements are historic, nuance riddled real property issues who 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.  If you are the owner of an easement right, or the owner of a dominant tenement and want to know your rights or obligations, start with what the registered easement provides for. From there, or if nothing is registered, you should seek legal advice.

Hummingbird Lawyers

Hummingbird Lawyers strategically assists businesses and individuals in the areas of corporate law, commercial and residential real estate transactions, wills and estates, employment law and commercial and family law litigation.

39 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

  • Reply March 29, 2018

    Michael

    Thanks for sharing this information with us. Keep posting and keep sharing like this.

  • Reply March 30, 2018

    Joon Jung

    Hi,

    I’m about to purchase a property and found out that the neighbor thinks he has a prescriptive easement since he’s been using my land for many years and it was that way when he bought as well. The problem is I share a wall and so the other wall that i don’t share should give me 5 feet out to access but I don’t bc he has encroached all the way to my wal and put up chicken fence etc and there’s even a courtyard front wall that blocks me from accessing that easement to my backyard. If the dominant tenant blocks access is that legal?

    • Reply April 9, 2018

      Andrew Fortis

      We would have to review the survey and instruments registered on title to get a fuller picture of what is happening, but if the dominant tenement is illegally blocked, then the servient tenement could be liable for damages.

      My suggestion is, given that you are about to purchase the property, and I don’t know what stage you are at (i.e. if the Agreement of Purchase and Sale is finalized, or if closing is only weeks away), if you have already retained a real estate lawyer, I would have them look into this further and assist in its resolution.

      Real estate transactions are large value transactions, so you will want to know exactly what your rights are before you close. If you don’t have a real estate lawyer, please contact us.

  • Reply May 17, 2018

    Jeff

    I can’t believe I can’t find the answer to this anywhere. Everyone in my neighborhood has an easement where I live. Some people choose to build (usually a fence) across the easement which is not an illegal, but the homeowner does so at their own risk because if utility access is needed and the fence blocks access, the utility company is in full right to access that utility by any means up to removing the fence at no liability to them. My issue is that I don’t have a fence and I think for that reason is why my yard was selected and a hand hole was installed in the easement on my property. Now, its bad enough that they didn’t even get the thing level in the ground, but what I’m not digging is them accessing this by walking from front to back (without asking) of my yard to access this hand hole. To me they should be walking the easement property to get to it OR at least be proper and ask me if they can access it that way. What are my rights in that manner? At any rate when I get to the point of building a fence I will be pad locking my gate, and I have no intentions of having the hand hole on the inside perimeter of the fence. Hopefully that will curtail random fools walking through my yard.

    • Reply May 25, 2018

      Andrew Fortis

      Hi Jeff,
      While we appreciate your frustration with this issue, it is very difficult to ascertain your rights and obligations without having the benefit of reviewing the terms of the easement registered on your property. It may very well be that they are using your property as it may be the “path of least resistance”, but it is hard to be certain without seeing what is involved.

      I would suggest that you book a consultation with our office and have us review the title to the land and discuss it with you to get some more back ground information. While our consultations are not free, they will provide you with a better understanding of your rights. If didn’t want to proceed with a consultation, my recommendation is to call the utility company and discuss your issue with them and inquire as to why they are proceeding by entering upon your land. Of course, without a review of the title documents, you won’t be in a position to tell them if they are wrong.

  • Reply May 18, 2018

    Dave Cod

    Hi. There is a (approx 10ft high) sound Barrier wall that butts up against my end unit Townhouse. It was only many years after I bought it that it became apparent that (since my Property line extends a metre beyond the brick end wall of my home ) ,,,the Sound Barrier is on my Property.

    Would a city owned Sound Barrier wall be considered an “Easement ” that the first homeowner agreed to ? Especially if I knew nothing about it for many years (the lawyer who oversaw my purchase never said anything about it ) as I don’t believe the fence is marked on the Survey of the Property.

    How would I have to proceed in having the City (Waterloo Ontario) move the Sound Barrier Wall back that metre … so that it is off my Property ?

    Thanks in advance, Dave

    • Reply May 22, 2018

      Hummingbird Lawyers

      Thanks for your comment, Dave. We sent your comment to our Andrew Fortis, our real estate lawyer. He’ll review the comment and get back to you.

  • Reply May 19, 2018

    Norman Fabrown

    Hi! We discovered that our neighbour’s (we have a duplex and the neighbour owns the other half) sewage line connects to ours before heading out to the city line.

    Several plumbers have gone on record saying the pipe, which is ancient clay, requires replacement in the next few years at most. We believe the neighbour should split the repair costs 50/50, including repair of flooring and porch, as they have an equal interest in maintaining the pipe.

    The neighbour contends they should pay some lesser amount (a third of the cost) because it is not on their property.

    Is there any precedent for how the beneficiary of the shared pipe should be required to cover necessary maintenance? There is no formal easement registered on out property but it looks like the pipe has been this easy for decades.

    • Reply May 22, 2018

      Hummingbird Lawyers

      Thanks for your comment, Norman. We sent your comment to our Andrew Fortis, our real estate lawyer. He’ll review the comment and get back to you.

  • Reply May 24, 2018

    Doug Counter

    Our next door neighbor with whom we, my mother and I, (she is title holder) has erected a fence on the property line, which exists basically in centre of driveway. The fence now prohibits my access to rightful parking area, which is at back of house at ground level.
    The driveway seems to fit perfectly as common/shared driveways are described as I could find on google.
    I have no doubt neighbor did no research into subject as he commented to legal authority that he had permit to erect fence……..problem is…..Town of Newmarket does not issue fence building permits. So……he lied to police and is scrambling to mask his stupidity/ignorance.
    Do you have experience/background to deal with such an issue?

    • Reply May 26, 2018

      Hummingbird Lawyers

      Thanks for your comment Doug.
      One of our real estate lawyers will reach out to you.

  • Reply June 1, 2018

    Mike

    I have a property that is only accessible by crossing a dam owned by Parks Canada. it has been used for this purpose for over 100 years. Can they now stop me from using it because it is Federal property? Thanks.

    • Reply June 3, 2018

      Hummingbird Lawyers

      Thanks for your comment Mike.
      I have forwarded the question to Andrew and Michael, our real estate lawyers.

  • Reply July 26, 2018

    maria

    I have a property that has an “easement”. Cable companies has an orange box in my backyard. According to the easement, the crew should be allowed to enter my property to access the said box for repairs and etc. My question is, are they allowed to dig beyond and extend through my property? They have marked portion of my backyard with paint, i think it is the area they are gonna dig.

    • Reply July 27, 2018

      Hummingbird Lawyers

      Thank you for your comment, Maria.
      Please use the form to contact our real estate lawyers for any easements related issues, and one of our experienced lawyers will get in touch with you.

      Regards,

      Hummingbird Lawyers

  • Reply August 4, 2018

    Corrine

    Hi Hummingbird Lawyers,
    You have share the outstanding information on this page about the removal of property tax due to the highest country tax in city in a most easiest way by writing an application with the specific reason to the government of Canada wand also attachment of legal property documents which is helpful for your property tax layer to pass the property tax claim with in a short period of time according to the rules and regulation of a country policy . The Implied Grant point are very helpful for understanding the procedure of approval tax application easily.
    Thanks .

    • Reply August 16, 2018

      Hummingbird Lawyers

      Thanks for the comment, Corrine.

  • Reply August 14, 2018

    Marla Adamson Barber

    I am in the process of selling property that has had, since 1989, driveway access across the farmland from which the building lot was severed. There is no documentation (that I can find) about granting of easement. The servient property changed ownership in 2005 with no question of our easement.
    What, if any, action is required to sell the dominant property assuring future owners that they may continue to use the 29 year old driveway?

    • Reply August 16, 2018

      Erez Elias

      Hi Marla,
      Thanks for your comment.
      To answer your question, it would be best to contact our firm by filling out the form or by calling us directly: 905.731.1911
      Regards, Hummingbird Lawyers.

  • Reply November 9, 2018

    Scott

    Love this site!

    Quick question: If there are two people with rights to a right of way, and one person is wanting to make changes to it, does the other person have to be consulted and agree?

    Thanks!

    • Reply November 13, 2018

      support

      Thanks for your comment, Scott.
      Yes, in order to change a registered easement, the parties have to agree and then they should register that agreement.

      For any other questions, please contact our real estate lawyer by phone (905.731.1911) or email(andrew@hummingbirdlaw.com).

  • Reply November 22, 2018

    Howard

    Hello, wonderful information, and relatively understandable for a layperson. I own a property through which the electrical utility runs a distribution line to a small town. The utility has a ROW for the lines and towers which includes a portion on the south edge of the property, and a portion on the north edge of the property but nothing in between. This corridor which is not in the ROW also happens to be oceanfront, and the prime building location. In addition, the poles on the north side of the property are about 20 or 30 feet outside the ROW. I contacted the electrical utility and they agree that the poles are not on the ROW, and that their lines cross over land that is not on the ROW. Can the utility continue to operate in this manner now that it is brought to their attention, or do I have a legal remedy? I suggested that I would be agreeable to altering the ROW so that their poles and lines were within the boundaries, but would like the portion of the line that is not on the ROW to be buried underground (over about 200m) or to relocate the overhead lines to a different part of the property.

    • Reply November 22, 2018

      Hummingbird Lawyers

      Thanks for your comment, Howard.

      Please contact us directly (contact form/ phone, email) and we would be glad to assist further.

Leave a Reply