What is an Easement in Canada?

A close look at the definition of an easement, the different types of easements, and how they are created.

An easement is a legal privilege that allows an individual or entity to utilize another’s property for a specific intention without possessing it. It is essential for managing land use and property rights. Easements establish rights and obligations between property holders, known as dominant and servient tenements, ensuring a balanced approach to property usage.

Definition of Easements

Easements involve a defined authorization for the dominant tenement to use sections of the servient tenement’s property for a particular purpose. The rights provided by an easement do not translate into ownership but ensure specific permissible actions on the servient land, without which such actions would constitute trespassing.

Types of Easements

Understanding the various categories of easements provides clarity on the scope and limitations of these legal arrangements.

Right of Way
The right of way is a commonly recognized form of easement allowing passage through the servient property. This can include shared driveways or pathways necessary for access to public infrastructure. It facilitates access without infringing on property boundaries.

Conservation Easements
Conservation easements are designed to restrict the development of land. By doing so, they protect ecological or historical values present on the property. These easements may involve specific restrictions to preserve natural scenery, habitats, or environmental features.

Construction Easements
Construction easements are temporary arrangements established for the duration of a construction project. They permit usage or alterations of the servient land, helping facilitate building projects that involve large machinery or require additional access.

Right to Light
The right to light easement concerns the access to natural light. This ensures that a structure on a property is not overshadowed by nearby developments, maintaining present levels of light reaching the property, thus avoiding increased shading from new construction.

Support Easements
Support easements concentrate on the structural aspects of neighbouring properties. These arrangements are designed to provide assurance that a building will not undermine the support needed for a neighbouring structure. They are in urban settings with developments close to property boundaries.

Time-limited Access
Easements that are set for a particular duration are termed time-limited access. They delineate temporary permissions, often predetermined to support short-term requirements such as event hosting or temporary infrastructure deployment.

Maintenance Easements
Maintenance easements help ensure access for upkeep of services and utilities including drainage systems, water lines, and similar infrastructure vital for community functionality. They clarify the rights for intervention and repair activities by concerned authorities or utilities.

Air Rights
Air rights easements regulate the usage of airspace over particular properties. Particularly relevant in urban environments, these easements allow for the development of structures that span above existing buildings or infrastructure, maintaining right of way or future development provisions.

Easements in Gross
Easements in gross do not tie directly to the dominant tenement but are related to the servient tenement itself. These are often granted to utility corporations for practical purposes such as laying pipelines, electrical wires, or similar needs unrelated to adjacent landholdings.

Creation of Easements

Easements are created through express, implied, prescriptive, or statutory means.

Express Grant
Through express grants, easements are intentionally conveyed in writing, with official registration in land records. This process typically involves legal deeds and must conform to written requirements with mutual consent between involved parties.

Implied Grant
Implied grants manifest from necessity rather than explicit agreements, such as when a landlocked property requires means of access through adjacent land. These arise from traditional use rights assumed to have been intended under initial land dispositions.

Prescriptive Easement
Prescriptive easements arise over uninterrupted usage spanning two decades, without explicit permission from the servient owner. These rights, however, are limited to properties governed by specific legal systems, excluding those under comprehensive land title frameworks.

Statute-Based Easements
Statutory easements are established by legal mandates facilitating public utilities, services, or other community facilities. These might include government decrees for installing essential infrastructure like drainage systems or power lines, ensuring public system efficiency.

Documentation and Registration

Proper documentation and formal registration are mandatory for an easement’s validity. Details about the servient and dominant tenements must be officially recorded, with precise definitions concerning the length, breadth, and nature of the easement. Registration occurs at designated land offices or within established electronic record systems to confirm lawful recognition.

Rights and Obligations

The rights and obligations associated with easements extend to both parties involved. While the dominant tenement benefits by utilizing the servient property, they must adhere strictly to the defined use. Servient property owners need to enable access as described, respecting the legal constraints imposed by the easement. When a property is sold, easements are automatically transferred to the new owners to preserve continuity.

Termination of Easements

Termination occurs under specific circumstances, such as:

Merger
A merger results in termination if a single entity becomes the owner of both dominant and servient tenements, rendering the easement unnecessary.

Release
Voluntary release occurs when the dominant tenement relinquishes the easement rights, often by mutual consent documented in writing.

Cessation of Purpose
Easements cease when their intended function no longer exists. This does not merely involve a lack of usage but a definitive end to the need served by the easement.

Legal Considerations

Easements must be established in writing to be legally valid, while verbal agreements hold no legal value. Legal advisors recommend engaging competent counsel for transactions involving properties with existing easements to comprehend potential constraints and responsibilities.

Searching for Easements

A diligent search for existing easements is vital before property transactions. This involves inquiries with local land records offices or online property databases, ensuring well-informed purchase or development decisions by clarifying the rights and burdens associated with the land.

Unregistered Easements

In rare cases, particularly with utilities, unregistered easements might exist. These could be rectified by direct inquiries with the utilities involved or specific investigations beyond title records to ascertain the existence of any implicit rights or usages that could influence ownership rights.