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One of the most common questions we receive from clients is how easements affect their land title and what rights utility companies have to inspect their property. If you’ve ever wondered why a utility company can enter your land or why a neighbor can use part of your property, it’s likely because of an easement.

An easement is a legal right that permits the owner of one property (referred to as the “dominant tenement“) to use a portion of another property (the “servient tenement“) for a specific, defined purpose. A critical aspect of easements is that they “run with the land,” meaning that these rights remain attached to the property regardless of changes in ownership. Understanding the implications of easements is essential for property owners, prospective buyers, and real estate professionals, as they can significantly impact the use and enjoyment of the land.

In essence, an easement grants the dominant party a legal right to access or use the servient party’s land without the need for ongoing permission from the property owner. For an easement to be legally valid, it must include three key elements:

• Dominant Tenement: The property that benefits from the easement.
• Servient Tenement: The property that carries the burden of the easement.
• Complete Legal Description: This outlines the specific area and terms, usually through a reference plan or metes and bounds.

An exception to this is an Easement in Gross, which is not tied to a neighboring property but instead benefits an entity, such as a utility company. Easements in Gross grant rights to organizations like Bell or Hydro One to access private property for purposes of maintenance or inspection, even if the property owner has not personally granted permission.

Common examples of easements include rights of way, which permit a property owner to cross another’s land to access a public road; shared driveways between neighboring properties; utility easements, allowing the installation and maintenance of infrastructure such as power lines or pipelines; and drainage easements ensuring proper water flow between properties. These legal arrangements are vital in ensuring that land can be used efficiently and that property rights are preserved and upheld. Understanding easements can help you better manage your property and avoid surprises, especially when it comes to potential access or usage issues.

How Easements Are Created

In Ontario, easements can be established in four primary ways:

1. Express Grant: An easement by express grant arises when a property owner voluntarily conveys to another party the legal right to use a portion of their land for a specific purpose. A common example is a Right of Way, where one party is granted the right to traverse the land of another. This type of easement is particularly prevalent in rural or recreational properties, such as instances where a landlocked cottage owner is granted access through adjoining land to reach a shoreline or public road.

2. Prescription: An easement by prescription may arise through adverse possession, often referred to as “squatters’ rights.” This occurs when one property owner uses a portion of their neighbor’s land without permission, and the use remains uncontested for a legally prescribed period—typically 20 years under the former Land Registry System. While prescriptive easements are possible, they are rare in Ontario due to the shift from the Land Registry System to the Land Titles System. Under the Land Titles Act, easements cannot be acquired through adverse possession or prescription.

3. Implication: Easements can arise by implication when circumstances require it. A common example is party wall agreements in row houses, where both owners share responsibility for a common wall. In these cases, an implied easement by necessity allows each owner to maintain their portion of the wall.

4. Statute: Public utilities and services, such as hydro and telecommunications companies, may establish easements by statute. These Easements in Gross do not require a dominant tenement and are typically used to grant access for maintaining utility infrastructure, drainage systems, or public services. In new subdivisions, for example, developers often grant easements to utility companies for installing and maintaining infrastructure. Companies like Rogers or Bell may hold easements to install, maintain, and access infrastructure such as fiber optic cables or telephone poles on private property. These easements remain valid regardless of changes in property ownership.

Terminating an Easement

Easements can be terminated in the following situations:

1. Merger: When the same individual acquires ownership of both the dominant and servient tenements, the easement is automatically extinguished.

2. Release: The owner of the dominant tenement can voluntarily release the easement, giving up their rights.

3. Cessation of Purpose: If the reason for the easement no longer exists, it may be terminated. However, non-use alone does not automatically end an easement; legal interpretation and expert advice are often required.

Easements play a crucial role in property ownership and management. Whether you’re buying, selling, or managing land, understanding how easements affect your property is essential for avoiding issues and ensuring smooth transactions. We at Kormans LLP are committed to providing personalized, legal support in navigating your rights and resolving complex issues around easement. Contact us today through email at [email protected] or call (905) 270-6660!

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