Contrary to the popular saying, what you don’t know CAN hurt you. If you’re looking to buy Real Estate in Ontario, make sure you know what you’re getting. Failing to do the proper research could lead to you getting more than what you bargained for. Undiscovered easements on a property could turn a prime investment into a privacy-lovers nightmare.
What is an Easement?
An Easement is a right enjoyed by a dominant tenement over a servient tenement, for a purpose other than general use or occupation. An Easement runs with the land and binds all subsequent owners. In order for it to exist, the properties do not need to be adjoining.
While that definition might sound confusing, it’s a lot simpler than it sounds. An Easement is the right for one property owner to enter another’s without permission.
All Easements consist of the following three elements to be valid:
- Dominant Tenement (Property receiving benefit)
- Servient Tenement (Property giving the benefit)
- Full description (Reference plan or metes & bounds)
*An important exception exists to Gross Easements. These are valid despite lack of a dominant tenement. (more on this later)
Creation of an Easement
There are four types of easements in Ontario.
Express Grant
This is the most straightforward form of easement. It occurs when an owner grants privilege of use to another for a specific purpose. The most common manifestation of this is a Right of Way.
A Right of Way is a type of easement in which the owner grants access rights of another to pass over the land of another. These access agreements are in rural and recreational properties (i.e. cottages). The waterfront owner will grant an Easement to the landlocked property to access the shorefront.
Prescription
In this scenario, the Easement is granted due to adverse possession, or “squatters rights”. If an owner builds a fence on a neighbour’s yard, an easement could exist.
Property ownership in Ontario is more complicated than just knowing where your boundaries are. Easements can exist to allow others to use your land for a certain purpose.
— Catalyst Real Estate Brokerage Ltd. (@catalystreca) November 21, 2022
Here’s everything you need to know about Easements 👇
If left uncontested for an extended period of time, the fence-owner could argue an Easement exists. The burden of proof always rests on the claimant. It’s important to note that an encroachment may create one.
The easement is not the encroachment itself, but the ramifications of the encroachment. Claiming an easement by prescription is a difficult and complicated task. Claims of adverse possession are only valid under the Registry System (older system of land registration).
Most land has been converted to the Land Titles System. As such, Section 51(1) of the Land Titles Act, R.S.O. 1990, c.L5, states that no title could be acquired by “length of possession or by prescription”.
Implication
Two adjacent property owners may encounter a scenario in which an Easement exists by Implication. The most common example being row-houses, in which the “party wall” is integral to the structure. In this case, an Easement exists by necessity.
Owners may enter into a “Party Wall Agreement”. Owners would be obligated to maintain their respective sides, perform routine inspections and maintenance, and ensure adequate fire separation.
Statute
Public Services in Ontario can create Easements to ensure access to their facilities and equipment. Examples include an Easement for utilities or an Easement for drainage and sewer. This is an Easement in Gross.
An Easement in Gross does not carry the requirement of defining a dominant tenement. In Subdivisions, it is common for the developer to give a Gross Easement to the Utility or Telecommunications Company for the purposes of access and maintenance of their equipment. This Utility Easement, while not an Easement by Statute, is the most common example of an Easement in Gross.
A Drainage Easement is another prime example of an Easement in Gross. A common requirement of a Subdivision Agreement between a Developer and a Township may require an easement for drainage to be registered on title to the saleable properties.
These easements are typically temporary in nature, and allow the Municipality (or its designated authorities) the ability to enter the private land of the homes and affect grading changes to the soil to ensure proper drainage from private properties into the storm drains.
Easements in Gross should not be confused with a road allowance. Road allowances are strips of land owned by the municipality. Homeowners can typically use these for extended lawns beyond the property line.
Hydro easements are common due to the nature of hydro service being installed prior to subdivision and construction of neighbourhoods. In rural Ontario, there are still a large number of unregistered Hydro Easements, mainly due to poor record keeping and existence before Land Titles.
Owners who believe they may have an unregistered easement can use Hydro One’s Unregistered Easement Search.
Termination of an Easement
There are 3 situations in which an Easement ceases existence.
Merge
The easement ceases to exist if the dominant and servient tenement are the same owner.
Release
At any time, the dominant tenement (receiving the benefit) may release the Easement.
Cessation of Purpose
An Easement ceases to exist if it no longer serves purpose. For example, a developer demolishes a townhouse and the party wall no longer exists. It’s important to note here that non-use of the Easement is not sufficient evidence for cessation of its purpose. The case law varies on this matter and expert advice should be sought.
Modifying an Easement
There is currently no system for easement modification in Ontario’s Land Registry. Easement modifications are viewed as termination of the prior agreement and commencement of a new one. This creates an issue, as all new easements require consent of the municipality.
Homeowners may think it is possible to simply agree to move or modify the location or purpose of the easement. However, doing so without proper consent as outlined in The Planning Act could cause the entire easement to be void. Further, violation of the Planning Act could cause defect to title and put all present or future owners at risk.
Prior to an agreement of modification, consult your local building or planning department. Minor modifications to an easement can often be made “over the counter”, without the need for re-consent from the committee of adjustment.
Responsibility of the Easement
An Easement grants use of a part of property, but does not transfer interest. As such, the original property owner is still responsible for the taxes on the part of the property. Maintenance of the easement is usually the responsibility of the property owner. Owners can negotiate and register such arrangements during creation.
Easement, License, and Lease
A license grants interest in all or a portion of land for a specific period. A lease is a form of license that grants exclusive use for a stipulated length of time.An easement differs from a license or lease in that the interest exists until terminated.
Easement Records
The Land Registry Offices of Ontario are responsible for keeping record of Easements. Box 7 of the Transfer of Land Form (Form 1) contains space to stipulate an easement. Schedules (Form 5) attach to these Deeds, providing more information if necessary. Lawyers use the Document General (Form 4) to dispose of an Easement.
According to Section 23 of the Registry Act, Ontario, easements must be descriptive to be enforceable. Acceptable descriptions include a reference plan, or metes and bounds descriptions. This applies to all Easements registered on or after January 1, 1967.
In present day, most owners or Lawyers choose to register the Easement on Title. A Document is registered in the parcel register of the servient and, sometimes the dominant property. This was not always the case. To ensure the possibility of Easement is thoroughly explored, lawyers recommend performing a Parcel Search of the subject property, as well as all adjacent properties. You can request a search at the region’s assigned Land Registry Offices, or via Teranet.
Title Records held at the Land Registry Offices are simply an archive of documents affecting a particular property. Its important to note that failing to properly register and report an easement does not necessarily disqualify its existence. Similarly, registration (or discovery) of an easement on title does not guarantee its legality or its enforceability.
Easements and The Planning Act
It is common for property owners to come to an agreement regarding use of another’s land for a specific purpose. In these cases, owners will typically seek advice for registration of an easement agreement. However, easements are not as easily created as you might think.
The Planning Act, an act that governs land use & regulation in Ontario, stipulates that an easement may be considered as a severance of land from its original parcel. This can’t be done without consent from the municipality, typically via application to the Committee of Adjustment.
The Ontario Agreement of Purchase and Sale
OREA’s Agreement of Purchase and Sale protects purchasers from undisclosed easements. According to Clause 10, if the solicitor discovers an easement on or before the requisition date, the purchaser can object. The clause excludes minor easements for public services and utilities.
Will an Easement Affect Property Value?
There’s no “rule of thumb” about how an Easement to property will affect its value. If the Easement (as with all improvements) adds value to the land, then you may want to market its advantage. However, subjecting your property to an Easement doesn’t immediately decrease its value.
Conservation Easements
An increasingly common form of easement seen in Ontario is a Conservation Easement. Rather than allowing access, a Conservation Easement is granted by the owner of the property to the Ontario Heritage Trust. In this scenario, the OHT is considered the dominant tenement and the property owner the servient tenement.
As easements bind subsequent property owners, the property is essentially protected from development or modification without consent from the Trust.
Farmers have been using conservation easements as a means to preserve farmland across Ontario.
Conclusion
Easements are a complicated and diverse topic. While this guide provides a deep explanation of Easements, it is not conclusive. If you have questions, Contact Us for a free consultation.
27 Responses
We live in a 4 unit condo. Our only access to our backyard is we have an easement behind our neighbours house. When I am in backyard in summer, friends have come over and to get me they have come outback through the easement. My neighbour has told off several of my family who used it. We cannot hear doorbell so this is why they came through it. The sides of the condos are shared by both neighbours who is a friend of ours who said anybody is allowed to use her walkway to get outback. All they have to do is walk at back of the mean ladies house but it is behind her fence. This easement was granted to us when condo was built. What are the rules about easement.
Unfortunately, there’s no ‘easement law’ that you can refer to as each easement is different. However, when adjudicating easements, the courts typically look at three things in determining if the use of the easement is reasonable:
I’d recommend contacting a lawyer or a paralegal to review the easement in full and provide an opinion. Following that, you can make a determination if you’d like to pursue a court action to enforce the easement.
You said that maintenance of easement is usually property owners resonsibility. In my case the property owner is demanding costs and is taking me to small claims court. I wish to defend myself. Do you have any suggestions. I was told that I should provide an example of a similar situation in order to defend myself. Thank you
Hi Robert – this goes beyond the scope of the article. Please contact a lawyer or paralegal for help in this situation, thanks!
I am looking at purchasing 7 acre waterfront home. It has easements to the driveway at the front and back of the property, and on the plan, these are shown with different part #’s and shown as “Travelled Right of Way”. In this case is the access automatic to those cottage owners that travel this laneway to access their cottages or do they each need to have it in writing with the servient land owner? If the latter, on purchase who pays to have all this paperwork redone with the new owner of the servient land? Secondly, is the servient land owner responsible to manage and maintain those laneways used by others? It should be noted that the land owner does not need to drive on these to access their own home.
Hi Elaine, this sounds like a complex situation. Your agent and/or Real Estate lawyer should be able to help after proper analysis of all the documents. There’s no ‘defining law’ that governs easements, but the courts typically use a reasonableness test in the wording of the easement and the requirements of both the dominant and servient tenement.
I have a neighbour that has access to my easement. In the recent days we have been getting unwanted visitors that are not allowed on the property. I have now closed the gate with no lock just a chain holding it closed. I am allowed to have this done to keep out unwanted visitors?
Hi Ben – It would depend on the nature of the easement and the purpose. The courts would look to see if you are impeding the ability to exercise the right. We’d recommend you contact a Lawyer in this situation for a more detailed analysis.
I live in a rural area of Ottawa and have right of way to get into my home. How much is considered part of right of way on either side of the laneway. My neighbors put their garbage almost touching my laneway.
Hello Emilia – you’d have to take a look at the survey or registered R-plan of the right of way/easement. Alternatively, there will be a description with metes and bounds. Typically there’s no “additional space” on either side as you mentioned, the amount designated is the right of way.
I love in a townhouse, second from the end. The owner of the end unit refuses to keep the easement clean so that I have access. What are my rights, I need access to mow my yard etc.
Hello there,
Your next steps would be to likely read the easement for any access specifics and then contact a lawyer or paralegal for further assistance.
In Toronto a neighbour and myself share a walkway to our backyards. They have a hydro meter on their wall. I have a hose connection. We both have furnace vent pipes. I use the walkway, which is around 34″ wide to get to my back yard or front. They could do the same but they have their side fenced off, as they can use the other side of their house to enter their backyard. The shared walkway comes off the city sidewalk and is right next to the neighbour’s main walkway to their front door. They’ve installed a 4′ wire fence between the two walkways from the city sidewalk to the front of their house. Crab grass is growing under the fence line and into the cracks in the shared walkway, cement slabs. My question is who’s responsible for keeping the shared walkway clean of weeds?
Hi Jim – the easement usually describes who would be responsible for maintenance. However, in absence of that, the property owner would be usually in charge of maintaining the property in the state of the property when the easement was originally granted. However, these situations are very complex and become nuanced, such as in the case of snow removal. Its important to contact a Lawyer or paralegal for expert advice.
How wide does an easement need to be when there’s one separating the backyard of multiple properties For fencing reference
Hello Bradley – there are no minimum requirements of easements with respect to dimensions.
My property has a 4′ utility easement. Can I expand my driveway over it? Or plant a hedge?
While we cannot give legal advice in this comment section, it is generally acceptable to landscape unused portions of the easement, until such time the right of the easement is exercised. The land owner still retains ownership of the land except for the part/use forefitted (for example, if the easement expressly states it needs to be a walkway). Keep in mind this may be part of a Road Allowance.
On my land Transfer Instrument from ONLAND there is a T/W THE INTEREST IN RSxxxxxx where x is a number. How can I find out exactly what this means for me?
Hello Juergen, great question. The Instrument number can be purchased at ONLAND (onland.ca). You will have to enter your land registry office (should be on the top of that first transfer) and then select “DOCUMENTS”. Use the registration number RSXXX and purchase a copy. I believe it is about $4.
I already have that document. It is a Transfer/Deed for the same property from 1999. It has no references to any S/T nor T/W easements. Will an easement have a document or documents registered somewhere specifying the rules of that easement? If yes, are they available to the public? If no, how does one find out what the scope is of an easement?
Hello Baron,
I amplanning to buy townhouse end unit and it has a green box transformer ,is that consider there is an easement on property and does it affect property value? Thanks
Hydro companies either have an easement on the land or own the land via a process called expropriation. You can find out more in the property’s title parcel as well as survey.
Hi Baron, I live in a detached home and there is a walkway to go to our back yard between our houses. My neighbor has blocked half of the walkway on what would be “his half” making the back almost impassable. Is this an easement and if so what can I do ?
Hi there, you’d have to discuss with legal counsel. If a registered easement exists you’d likely need a court order to enforce it. If there is no registered easement, you’d argue for an implied easement, which could go either way.
Hi,
I’m looking into buying 100 acres that I consider landlocked. The seller says he has an easement (that he made into atv only)we can use to cross his property that turns into a right of way(an old snowmobile trail not on his property) that we would have to use to get to said property.
Through searching online I can’t find anything that says he can limit an easement to atv only access. Is that a thing? If so can it be reversed?
How do I go about finding out who owns this right of way? It runs between several properties…on a map it looks like a municipal border line between two townships. Ive reached out to the township where the property is located but they said they can’t help as it’s a liability because I’m a potential buyer.
This property is zoned as RU. Any idea if there would be any building restrictions? Not sure who to turn for answers since the township won’t help.
I should mention that before he split up his property to sell..the easement was already being used by other property owners further back. Any help is greatly appreciated. Thank you.
Hi Ange – Easements can definitely be restricted by use case. Whether or not this is the case with your easement will be found in the registration documents.
We will reach out directly for more information.