Whether you’re a current or prospective property owner, it’s important to understand how easements may affect your use and enjoyment of real property. Easements are a necessary part of our property law system, granting rights to municipalities, utilities, and other parties that help create or maintain various services to our communities. They can also be a source of frustration when property owners discover that they don’t have total control over their land.
What is an easement?
An easement is a form of property in land, granting a right of use over the property of another for a specific purpose. It creates a right or interest in land rather than an ownership interest. Easements “run with the land,” meaning when the land is sold, the rights and obligations of the easement are transferred, and they are not registered against individuals. Common examples include:
- Utility Easements that give service providers the right to operate and maintain water, sanitary, and storm sewer lines, or other utilities such as telephone and cable lines.
- Municipal Easements that give the municipality the right to install or maintain services to the subdivision or lot, or deal with development issues like grading.
- Adjacent Property Owner Rights that give a neighbour the right to access a shared driveway or laneway, or a right to cross over the land to access their property (for example, a right of way). A neighbour may even have a right to enter upon the land to maintain their property.
Easements can prevent or limit a property owner’s ability to develop their land, such as building an extension to a home, a swimming pool, or garden, as the property owner must at all times comply with the easement, allowing unhindered and unimpeded access. If, for example, the property owner constructs a deck covering an easement, they may be legally required to remove the deck at their own cost.
Dealing with Easements
The best time to understand and deal with an easement is prior to purchase. Purchasers can conduct a title search and are entitled to requisition that certain easements be discharged from title. If the seller is unwilling or unable to discharge the easement, or insure against it, the purchase agreement may be at an end.
There are other types of easements which the Purchaser must accept. Section 10 of the standard OREA Agreement of Purchase and Sale states that the Purchaser will take title to the property, even if there is: “…(c) any minor easements for the supply of domestic utility or telephone services to the property or adjacent properties; and (d) any easements for drainage, storm or sanitary sewers, public utility lines, telephone lines, cable television lines or other services which do not materially affect the use of the property…” Reference to use in this section implies current use, rather than any future use which occur by way of development.
Of course, a property owner can attempt to have an easement removed by obtaining the consent of the party who’s been granted the easement or obtaining a court order. They will, however, not disappear simply through non-use.
It can be costly to deal with an easement once discovered. Worse, an owner may discover that their renovation dreams are not legally possible. So, before you purchase a property or undertake a renovation, carefully review title and consult a lawyer to ensure there are no easements which may affect your use of the property.
By Garry Shapiro, BCL, LLB, MBA & Evan Shapiro, HBA, JD