When you buy a house or piece of in Canada, it can come with certain conditions that you must take responsibility for as the new homeowner such as property taxes and insurance. It may also be accompanied by an “easement”, which is not necessarily a bad thing but something you should know about nonetheless. Read this to learn what an easement is.
What Is An Easement On A Property?
An easement is a legal right that allows third parties to use (not own) your property for a specific purpose. For example, you could have an easement that lets a neighbour use your driveway or move through part of your land without trespassing. You can also have an easement that enables utility companies to do work on your property without conflict.
Both of those situations fall under the “right of way” (ROW) easement, which is the most common type.Other important things to know about easements on properties in Canada:
- Easements are different from rentals or leases because accepted third parties do not have to pay to use the property, as long as it’s for the approved purpose.
- A “dominant” tenement refers to a property whose owner has a legal right over another property. That other property is called a “servient” tenement.
How Do You Know If You Have An Easement On Your Property?
You should be able to find any easements on your property by looking at its title. Alternatively, you might inherit prearranged easements when you buy a property.
Types Of Easements
Here are some of the most common kinds of easements you may encounter in Canada:
- Easements in Gross – These easements are not attached to a specific property and can be sold or transferred to another person. They are mostly used by utility or service companies to access land, so they may not appear on a property title.
- Appurtenant – On the other hand, an appurtenant is attached to a specific piece of land. The right-of-way easements above are good examples. Essentially, this means the appurtenant/easement will stay with the property, even if you sell/transfer it.
Other types of easements that can affect Canadian properties:
- Air rights
- Conversion easements
- Construction
- Easements described in a condominium announcement
- Maintenance
- Right to light
- Support
- Time-limited access
What Are Easements For?
There are several reasons easements get placed on properties in Canada, including:
To Give Someone The Right of Way/Passage
As mentioned, the most common easement is the right-of-way, which allows specific parties to access your property for authorized reasons, like using a portion of your driveway.
To Let Utility or Service Providers Access the Land
There could be many occasions when gas, water, sewage, or electric companies will need to access part of your property for various purposes, like repairs or general maintenance.
To Preserve Historical Sites
If your property is attached to a historical building or area, such as an ancient burial ground, an easement may be placed on it by a federal, provincial/territorial or municipal authority to stop it from being destroyed.
To Protect the Environment
In some provinces, property owners can enforce conservation easements. These voluntary restrictions let qualified conservation organizations and local governments become dominant tenements of protected lands to stop development on them. Donating owners may get a taxable benefit.
How Can You Find Easements On A Title?
Basic easements, including the right-of-way, can usually be found on your property title. However, you can also get this information by contacting the Land Titles Office or Online Property Registry in your area. These services should have everything you need to know about the legally-recognized easements in your province or territory.
Additionally, these services/websites will feature details about the types of easements on your property. Along with the years they’ve been active. For other details about the permissible easements in your region, reach out to your local government authority.
Can You Sell A Home With Easements?
Yes, you are allowed to sell a home/property with easements in Canada. As long as you disclose any associated implications or restrictions that could affect the buyer’s future use of the land. The buyer must be willing to accept those limitations. Otherwise, you may have to renegotiate the sales prices or think about cancelling the sale entirely.
Benefits Of An Easement On A Property
Remember, an easement is not always a bad thing, so don’t panic if you find one on your land. Actually, there are numerous benefits of an easement on a property, such as:
Landowner Benefits (For Servient Lands)
- The ability to stop unauthorized parties from trespassing on your property
- Prevention of destruction or development of historically significant sites
- Protection against destruction or development of environmentally sensitive areas
Receiving Party Benefits (For Dominant Owners)
- Protection against other parties using the land in a way that affects your own use
- Access to utility or service providers (without it being considered trespassing)
- Access to a particular piece of land, so it can be used for specific purposes
How Easements Are Created
Although an easement can be created because of a will, deed or agreement with an approved third party (like a utility or service company). The main methods of creating an easement are:
- An Agreement Between Parties – The easiest way to initiate an easement is for two property owners to form a fair agreement and get everything in writing.
- By Prescription – A “prescriptive” easement can be legally established over an extended period of time. For instance, if a neighbour has been using or passing through part of the land for more than 20 years with no complaint from the owner.
- By Judicial Decree – Courts can also order a specific piece of land to be part of an easement, like when one neighbour is stopping another from using their land.
The Bottom Line
If you’ve discovered one or more easements on your property, make sure to study up and stay informed. This way you can avoid problems with neighbours, service providers, and city employees and officials. After all, buying land in Canada can be a huge personal and financial commitment, so it’s best not to skip out any steps or research.
Frequently Asked Questions
What’s the difference between Dominant Owner and Servient Lands?
- The dominant owner is the partner who receives the main easement benefits. This often happens when a service or utility provider is given the right to access your property for maintenance purposes.
- Servient lands refer to any properties that are subject to the terms of the easement contract (i.e. lands that serve the agreement).
