Large antique gate in the park. Stock photo by Getty Images
Sometimes your property isn’t entirely yours. A neighbour or your municipality might also have rights to a portion, or even all of your land. This is called an easement.
An easement recognizes that one piece of land can’t be fully enjoyed without access to another piece of property. A common example would be a driveway, access road or pathway that encroaches onto an adjoining piece of land.
It can also cover intangibles like the right to make noise or the right to light, which would prevent a neighbor from building fences or walls that block natural light from your windows.
As well as bestowing rights to others, an easement might restrict your use of your own land. One example would be gas or power lines running under your yard. Your municipality or the utility company likely has an easement that grants them access and limits yours.
Creating an easement
Easements are legal agreements that must be created and attached to the property title. You don’t automatically have one just because your driveway spills over into your neighbour’s yard and you really need to use it.
One exception is called an easement by prescription, which means the easement exists when a right has been enjoyed for a designated period of time without interruption or consent of the landowner.
In Ontario for example, a prescriptive easement could exist after 20 years of use. B.C. doesn’t acknowledge this type of easement.
A landowner must consent in writing to an easement. If they refuse, a court can still grant one. If a case goes to court, the applicant needs to show that the easement is necessary, not simply convenient or reasonable.
Easements “run with the land,” meaning they continue even when the property is sold or transferred. You don’t need to create a new one when property changes hands.
Ending an easement
An easement can be removed from land title in a few different ways. It can be done by a judge’s order, or if the person enjoying the easement consents to end it.
It also disappears if someone buys both the property containing the easement and the one using it.
An easement doesn’t disappear through lack of use. The person granted the easement doesn’t have to use the driveway, path or whatever was “eased,” for it to remain valid.
Easements are part of provincial property laws, and will vary according to your jurisdiction. Check your provincial or territorial laws to see what applies to you.
Easements and restrictive covenants
Land Titles Act (Ontario)
Land Title Act (B.C.)