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Property Easements - Enjoying Your Property To Its Fullest

When it comes to real estate, what you don’t know CAN hurt you, especially when it comes to property easements. Property easements could turn a prime real estate investment into a privacy-lovers nightmare. As first-time homebuyers or experienced real estate investors, it is important to understand all the options that are available to you prior to closing. Here in this article, we talk about the ins and outs of property easements.

What Are Easements?

Legally speaking, an easement is a right enjoyed by a dominant tenement over a servient tenement, for a purpose other than general use or occupation. In layman’s term, an easement is the right for one property owner to enter another’s without permission. Remember, 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. 

All Easements consist of the following three elements to be valid:
  • Which property is the Dominant Tenement (Property receiving benefit)
  • Which property is the Servient Tenement (Property giving the benefit)
  • Full description of the easement (found within the Reference plan or metes & bounds)
For example, a landlocked property owner may have access to another property via a right-of-way easement. In the visual below, the landlocked property is the Dominant Tenement and the adjoining property in this scenario is the Servient Tenement. Additionally, adjoining properties is not a requirement for a property easement to exist between a Dominant and a Servient Tenement. 

 

The Land Registry Offices of Ontario are responsible for keeping record of all Easements. Since easements are registered on the title of the property,  all subsequent owners of the property are therefore bound to to the property. 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.

Types of Easements

There are generally 4 kinds of easements that potential home owners should know about.
 

1. Express Grant

An Express grant easement occurs when an owner grants privilege of use to another for a specific purpose. The most common examples are Right-of-Way easements, where the owner grants access rights of another to pass over the land of another. These easements are most commonly found in rural and recreational properties (ex. cottages).

2. Easement by Prescription

An Easement by prescription occurs when a right is enjoyed by an individual for 10 or more years without interruption or consent by the other landowner. This is also known as adverse possession or “squatters rights”. For example, an easement could be granted if an owner builds a fence on a neighbour’s yard. If left unchallenged for an extended period of time, the fence-owner could argue an Easement exists. The burden of proof always rests on the claimant, who is the Dominant Tenement.
 

3. Easement by Implication

Easement by implication occurs in certain scenarios for two adjacent property owners. The most common example being townhomes or row-houses, in which the shared “party wall” is integral to the structure of each property. In this case, an easement exists by necessity. Owners may enter into a “Party Wall Agreement” in which promises are made to maintain their respective sides, perform routine inspections and maintenance, and ensure adequate fire separation.

4. Easement by Statute

Easement by statute (also known as a gross easements) occurs when certain public services in Ontario (ex. utility company) require access to certain facilities and equipment on the property. These type of easements are special in that there is no dominant tenement. For example, it’s common for home developers to give a gross easement to utility or telecommunications company for the purposes of access and maintenance of their equipment. 

Termination of Easement

There are generally 4 ways to end an easement that potential home owners should know about.
 

1. Merge

The easement ceases to exist if the dominant and servient tenement are the same owner or the land merges into one plot.

2. Release

At any time, the dominant tenement (receiving the benefit) may release the Easement.

3. 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.

Purchasing a Property and Undisclosed Property Easements

Within the Agreement of Purchase and Sale, there are clauses that protects purchasers from undisclosed easements. 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?

Usually, If the property is the dominant tenement of the easement, then it may potentially increase value to the property. Similarly, If the property is the servient tenement of the easement, then it may potentially decrease value to the property. However, there’s no “ general rule” about how an easement can affect property value. 

What Should I do Next?

While your real estate agent can help you understand the basics of property easements, getting an opinion from a real estate lawyer is also essential. As such, we advise you to speak with a real estate lawyer or get in touch with us so we can refer you to an expert.

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