Easement

An easement is a right that one person (the 'dominant tenement' holder) has to use the land of another person (the 'servient tenement' holder) for a specific, defined purpose. The easement allows the holder to enter and use part of the burdened property without it constituting a trespass.

In Ontario, easements are governed by the common law and, for registered easements, by the Land Titles Act, R.S.O. 1990, c. L.5, and the Registry Act, R.S.O. 1990, c. R.20. The Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34 also contains provisions relevant to easement creation and transfer.

Easements run with the land — they are not personal rights tied to a specific individual. When the dominant land is sold, the benefit of the easement passes to the new owner. When the servient land is sold, the burden of the easement also passes to the new owner — provided the easement is properly registered on title.

Easements are extremely common in Ontario real estate and can significantly affect the value and use of a property. Buyers must understand what easements affect a property before completing a purchase.

Ontario law recognizes several categories of easements:

Right of way: The most common type — the right to pass over another's land. A private right of way allows the dominant tenement holder (e.g., a landlocked property) to travel across the servient tenement to reach a public road. A utility right of way allows a utility company to run pipes or lines across the land.

Utility easements: Easements granted to utilities (Hydro One, Bell, Rogers, municipal water and sewer) to install and maintain infrastructure across or under private land. These are extremely common — most Ontario properties have one or more utility easements in favour of the municipality or utility companies. Utility easements typically prohibit construction within the easement area.

Access easements: Rights for neighbouring properties to use a portion of a property for pedestrian or vehicular access. Common in older urban neighbourhoods where properties share a rear laneway.

Easements appurtenant: Easements attached to a specific dominant property. The easement follows the dominant land when it is sold — the new owner automatically gets the benefit.

Easements in gross: Easements held by a person or organization not as owner of a dominant tenement — for example, a utility company's easement. There is no 'dominant land' — the easement is held for the benefit of the organization.

Statutory easements: Easements created by statute, such as rights of way granted under the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, or the Ontario Energy Board Act, 1998.

Easements in Ontario can be created in several ways:

Express grant: The most common and legally clearest method. The owner of the servient tenement grants an easement to the dominant tenement owner (or to the public utility) by a formal written instrument registered in the land registry. The grant specifies the exact location, scope, and conditions of the easement.

Implied grant or reservation: Easements can be implied when a land owner sells part of their land and it would be apparent from the circumstances that an easement was intended. For example, if a property is divided and the only access to the back portion is through the front portion, an easement of necessity may be implied.

Easement of necessity: A court may create an easement of necessity where a property would otherwise be completely landlocked with no access to a public road. Under the Access to Neighbouring Land Act, R.S.O. 1990, c. A.3, the owner of a landlocked property can apply to a court for an order granting a right of access over neighbouring land.

Prescriptive easement (user): At common law, an easement could be acquired by 20 years of continuous, open, and as-of-right use. Under the Land Titles system, prescriptive easements are very difficult to establish — the Land Titles system generally does not recognize rights acquired by prescription against registered owners. Under the old Registry system, prescription was more readily available.

Statutory grant: Statutes may create easements automatically — for example, utilities may acquire rights under enabling legislation without registering individual easement documents.

The distinction between registered and unregistered easements is critical for title purposes in Ontario:

Registered easements: An easement registered in the Land Titles system under Section 71 of the Land Titles Act is noted on the Parcel Register. It is visible in a title search and binds all future owners of the servient land. This is the most reliable way to protect an easement.

Unregistered easements: Some easements exist but are not formally registered — old utility easements granted before the property was converted to the Land Titles system may not appear on the current Parcel Register. Rights of way established by long use before the Land Titles era may exist without registration.

For buyers, unregistered easements are a significant title risk: - They may not appear in a standard title search - They may affect the buyer's planned use of the property - Title insurance can cover some risks from unregistered easements, but coverage depends on the policy terms

The Land Titles Conversion Qualified (LTCQ) designation on converted properties means that title is not fully guaranteed for rights that existed before conversion — pre-conversion easements may exist without being on the current Parcel Register.

Buyers should ask their lawyer to review any historical instruments for the property, not just the current Parcel Register, to identify potential unregistered encumbrances.

The practical implications of easements for Ontario property owners and buyers:

Restrictions on use: A utility easement typically prohibits building permanent structures within the easement area. This can significantly restrict what a buyer can do with part of their property. A right of way easement may restrict fencing or landscaping within the access corridor.

Maintenance obligations: The easement document may specify who is responsible for maintaining the easement area. In a private right of way, the dominant tenement owner typically has the right (and obligation) to maintain the access way.

Forced access: The holder of an easement has the right to enter the property to use the easement — even if the current owner objects. Blocking or interfering with an easement is an actionable trespass.

Value impact: Easements can reduce property value — particularly if they restrict use of a significant portion of the lot. Buyers should consider the practical impact of any registered easements before completing a purchase.

Extinguishment: An easement can be extinguished by: agreement between the dominant and servient owners; unity of ownership (if the same person owns both properties, the easement merges and ceases); long abandonment combined with evidence of intent to abandon; or court order.

Negotiating easements: If the parties need to create a new easement (e.g., for a shared driveway or drainage route), the terms should be carefully negotiated and documented in a formal easement agreement, then registered on title.

Gary purchased a bungalow in Burlington, intending to add a two-car garage on the side of the house. After closing, his contractor discovered a utility easement in favour of the City of Burlington registered on the Parcel Register — a 3-metre wide easement along the north side of the property for a water main.

The easement prohibited any permanent structure within the easement area. Gary's planned garage would have been entirely within the easement corridor.

Gary had not reviewed the easement before making his purchase decision. His real estate lawyer had noted the easement in the title report delivered before closing — but Gary had not read it carefully. He had to revise his building plans, reducing the garage size to fit the remaining buildable area outside the easement.

Had Gary identified the easement before submitting his offer, he might have negotiated a price reduction reflecting the reduced buildable area, or he might have chosen a different property. This example illustrates the importance of reviewing title search results (including registered easements) before firm commitments are made.