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.
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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.
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.
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.
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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 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.
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.
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.
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.