Live Chat Online

How easements affect private property rights

You may be king of your castle, but do you have sole dominion over your land? The answer is ‘no’ if your property is subject to easement rights that allow another party to use part of your land or access services that cross it.

For example, your neighbour may have the legal right to use a portion of your driveway to access their garage. Or a public utility may have buried services that affect where you can install a new backyard pool or even a patio or deck. Any easement that affects your land is something you need to know about before you agree to purchase the property.

What is an easement?

An easement is the right to cross or otherwise use another’s land for a specified purpose. 

For example, your property may have an easement over your neighbour’s property to allow you to access your backyard.  Or maybe your property and your neighbour’s property have an easement that permits you both to share a single driveway.

Central to the concept of an easement is that they are a right of use, not ownership. Also important is that easements are registered for and against land, not people.  You don’t have an easement…your property does.  The exception to this is an easement in gross, which is registered with companies (like Bell and Rogers) or with people rather than land.

Survey Plan showing right-of-way easement between two Toronto houses.Survey Plan showing right-of-way easement between two Toronto houses. Note that the right-of-way is up against the house to the North.

Buying and selling property with easements

Rights and obligations of easements registered on your property are automatically transferred to the new owners when you sell.  

Similarly if a property owner wishes to sell his or her land they do not need the approval of the party whom the easement favours. However any change in the use of the property must take into consideration the fact of any existing easement. This would include building additions, a change in fence locations or a severance.

How is an easement documented?

Easements must be registered on title to be valid, either at the Registry Office or on TERANET. The parcel of land that is subject to the easement (called the “servient tenement”) must be described and the purpose of the easement identified. The parcel of land that benefits from the easement, known as the “dominant tenement,” must also be described.

For example, when there is little room between two houses, a right-of-way easement may allow the owner of one property (the dominant tenement) to maintain his or her home (e.g., to wash the windows) by entering an adjacent property (the servient tenement). In the official documentation, the servient tenement would be “subject to” (S/T) the easement, and the dominant tenement would have rights “together with” (T/W) the servient tenement.

How is an easement described?

The land that the easement affects must be described in the originating creating document as well as in subsequent transfers and mortgages. The pertinent documents (e.g., a reference plan or a legal document known as an “instrument”) will be listed in the Parcel Register available for purchase from the local Land Registry Office or for download from TERANET. These documents are also contained in a BoundaryPlus™ Property Report from Protect Your Boundaries.

Easements will be referenced in the property’s legal description, specifically detailing the burden or right of the easement, and in the instrument (which will have a unique number from the land registry).

People sometimes confuse verbal permission to use someone else’s property with an easement. If this is the case, it’s best to get the agreement in writing and register it on title.

Right-of-ways

A “right-of-way” (ROW) is a type of easement that commonly affects residential properties. Right-of-ways involve the movement of vehicles or pedestrian traffic (even cattle!) directly through a defined pathway.

Right-of-ways involve two adjacent properties. A deed will typically state what the land is “subject to” (S/T) or “together with” (T/W) if there is a ROW through neighbouring land.

Consider the example of a “lot” that is split front and back such that the rear portion has a driveway easement through the front parcel to get to the road. This permanent right-of-way cannot be blocked or fenced such that the access to the rear is obstructed.

More problematic are the mutual driveways between houses that are common in older neighbourhoods in the Greater Toronto Area (GTA). There are lots of stories of neighbours (often new neighbors or tenants) who restrict vehicular access to a rear garage or try to fence off a portion of the legal access. By law they cannot do this but such actions can result in open hostility between neighbours and even litigation.
 

Photo of the two houses with location of right-of-way (orange) and boundary (blue) overlaid. Photo of the two houses with location of right-of-way (orange) and boundary (blue) overlaid. 
Notice the white posts and car — both obstructing the free and clear access to the easement.

Sometimes what may be perceived to be legal access may not be a right-of-way at all because it is not specifically registered on title. When lots were created many decades ago sometimes an intended right-of-way did not find its way into the wording of the deed. In other cases it may have been a misunderstanding between the original parties (such as a builder and a developer) or an oversight by the solicitor. It may even be possible to correct such a deficiency today.

The exception to the rule

In certain cases where there has been longstanding (but unregistered) use of a driveway there could be common law right-of-way by prescription. As with Adverse Possession (see our previous blog) this cannot occur if lands are in Land Titles. The use must have taken place for 20 (not 10) uninterrupted years, prior to the date of conversion to Land Titles, and satisfy other precedent conditions before a court would make such a ruling in favour of the party claiming such access.

Another option is to work out an agreement with the neighbour to create and register a legal easement “on title”. This may involve a monetary payment but can save thousands of dollars in legal fees and result in more congenial relationships.

Utility easements

Many properties in the GTA are traversed by registered utility easements. This might be overhead phone, hydro and/or TV cables crossing the rear property lines of a number of lots in the block. It may also include water pipes and storm/sanitary sewers. Typically utilities in front of a house are within the road allowance and do not require easements. As well, services to individual houses do not require easements. Lines crossing a property to service another property are more problematic.

Problems to Consider

There are two issues to be concerned about. First, the easement applies not just to location of the pipe, conduit or wire, but to the full width of whatever is described in the title records. The overhead telephone wires strung between poles may lie within a 10-foot-wide easement that may well extend into the planned location of an in-ground pool or gazebo in the backyard. As you embark on your dream backyard renovation, be sure to avoid encroaching on a utility easement.

Remember that easements give others the right to use and/or access your land. This includes ripping out an expensive cedar deck to gain access to buried services. Our advice: check the title documents or survey to make sure that you are not building over a buried utility line.

The second issue is that of unregistered utility easements. This is another exception to the rule that easements must be registered: in certain cases an agency, such as local hydro, may have a legal easement even if it is not on title. If there is a line crossing your property but there’s nothing in the Parcel Register, you can check with the utility to see if they have an unregistered record of an easement. Toronto Hydro, for instance, has a process in place to make this determination. If it is determined that the unregistered easement is not legal the option is for the agency to purchase a “new” one from the landowner or remove equipment altogether.

Other types of easements

There are several kinds of easements that affect Canadian land. Some of these include:

  • Conservation easements
  • Construction
  • Right to light
  • Support
  • Time-limited access
  • Maintenance
  • Air rights
  • Easements described in a condominium declaration 

Surveys – Your Best Practice

Land surveys are useful tools to help understand such land situations. Survey plans prepared in the modern era will show the fact of a registered easement on the face of the plan. In most cases the location, derived from deed dimensions, will be shown in rough outline as well. An existing survey “paints a picture” of the property at a given point in time and may well show evidence of use in support of (or to refute) a claim for a prescriptive easement.

Take the copy of the plan with you when you walk the property. Read the information that relates to the size and shape of easement. Pace it out. See what structures might have been built within the easement. Are they legal? A movable shed will not block utility access. An elaborate gazebo and stonework, however, are not easily removed. Look for evidence of use such as overhead wires crossing through the land that are not shown on the survey or deed. An older driveway that has been built over the boundary could suggest a possible claim of prescriptive rights.

Contact a lawyer if you have questions about easements and the rights concerning a particular property or someone’s interest in your land. And remember, a survey plan is always one of your most valuable documents when it comes to easements and other important land issue. Use Protect Your Boundaries to find your survey plan and help you understand your land.