Easements Can Impact The Real Estate Transaction
Your clients can be surprised to learn that they don’t always have the sole and exclusionary use of their own land. A portion of their driveway might be used by an adjacent landowner to access a garage. A public utility may have buried wires right where a prospective purchaser wants to dig a back yard pool.
Many properties in the GTA are subject to easement rights that the real estate professional needs to be aware of and be able to explain to their clients. It is a great opportunity to help a client mitigate risk and demonstrate the added value that you bring to as a Realtor. Conversely a buyer ‘s misunderstanding can cause a closing to be delayed or even result in litigation.
What is an easement?
Easements allow a specific use of a part of a property by other people without the need for the registered land owner to share the property ownership with them. They have a right that not only “burdens” the property but can be sold without the need for the owner’s consent. For instance Rogers or Bell could sell an easement they “own” over a commercial development to Shaw without the approval of the landlord.
Similarly if an owner wishes to sell his or her land they do not need to get 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 portion of land that is subject to the easement (called the “servient tenement”) must be described and its purpose identified. The “dominant tenement” must also be described. It is the land that benefits from the easement. The exception is an easement “in gross” which favours a particular person or agency (rather than the land they own) and need only be registered against the land the easement affects.
How is an easement described?
The land that the easement affects must be described in the originating creating document as well as subsequent transfers and mortgages. This is done either by metes and bounds or as a part on a reference plan deposited in the Registry Office. The pertinent documents will be listed in the Parcel Register available for purchase form the local Land Registry Office or for download from TERANET. It is also one of the documents you get if you have Protect Your Boundaries prepare a BoundaryPlus™ Property Report.
Members of the public sometimes confuse verbal permission to use someone else’s property with an easement. If you find a situation like this, tell them it is best to get in writing and register it on title.
There are two types of easements that are most common with residential properties. These are rights-of- ways and utility easements. There is some confusion about whether a right-of-way (R/W) is an easement. It is. It is a specific type of easement usually involving 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 R/W through neighbouring land. Consider the example of “lot” that was split front and back such that the rear portion had a driveway easement through the remaining 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 more common in older GTA neighbourhoods. You are likely familiar with stories of inconsiderate neighbours, (often a new move-in or tenant) who restrict vehicular access to a rear garage or tries 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.
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.
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 (or even a century or so) 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 mach such a ruling in favour of the party claiming such access.
There is a recent court case in Toronto that may be of interest to GTA Realtors (1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91). It involved a broker who wished to build a new real estate office and needed access to a backyard parking area to comply with commercial zoning requirements. Unfortunately the only possible access was over a driveway between the two buildings but entirely on the neighbour’s land. That neighbour wished to rebuild to a zero lot line, as permitted by the zoning, but permanently removing the broker’s parking access by erecting a building. Although there had been ongoing use for more than 20 years by prior owners, the court found that the situation did not meet all the requirements for a prescriptive easement. What had been presumed to be permitted was not and had serious consequents for the broker’s “best use” plans for his property!
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 neighbourly relations.
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 quickly 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.
As a Realtor you are a conduit of information to better help your clients understand land. Take advantage of the opportunity to be indispensable to them!
Many properties in the GTA are traversed by registered utility easements. This might by an overhead bell, 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 the front are within the road allowance and do not require easements. As well, services to the 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 bell 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 their back yard. Sometimes I cringe when I watch HGTV landscaping shows when they build back yard structures but fail to provide a warning to viewers in the risks of 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 stone patio to gain access to buried services. Our advise; 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 nothing in the PIN 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 to purchase a “new” one from the landowner or remove the line altogether.
Other types of easements
There are several kinds of easements that affect Canadian land. Some of these include;
- Conservation easements
- Right to light
- Time-limited access
- Air rights
- Easements described in a Condominium declaration
If you have questions about easements and the rights concerning a particular property or someone’s interest in your land contact a lawyer. It is always best to get your hands on a survey plan. Use Protect Your Boundaries to find your survey plan and help you understand your land.