What is an Easement?
Within the province of Ontario, it is recognized that sometimes your personal property isn’t entirely your personal property. There are times when a neighbour or your town might actually hold property rights to a portion, or even all of your land. This concept is referred to as an easement, which is a legal agreement. Easements consist of four features. One, there must be both a dominant and servient tenement, except when expressly authorized by statue. Two, the dominant tenement must benefit from the easement. Three, the dominant and servient tenements must be held by different people and, a right over land cannot amount to an easement unless it is capable of forming the subject of a grant. For example, it must be clear and be capable of definition.
An easement shows that one piece of land cannot be fully enjoyed without access to another piece of land. A good example of an easement could be a road or pathway that infringes onto a connecting piece of land. But, you can’t just assume that you automatically have an easement just because your pathway goes into your neighbour’s yard. Easements must be created and then attached to the property title. But, this does not grant exclusive possession to an easement holder.
There are a lot of different forms of easements that can be granted. These include, granting an easement by deed, by prescription, by implication and/or by statute. Easements are however not easy to remove. Just because the main (dominant) user is not using the land, this is not sufficient evidence to consider the removal of an easement. An easement can be removed when/if the owner of the main property shows an intention to abandon or terminate the easement. The owner of the property is the only person that is allowed to remove the easement. For example, if your neighbour builds a wall or fence structure that restricts your access to the pathway, road, etc. Easements can also cover intangibles like the right to make noise or the right to light, which could prevent a neighbour from building a fence or wall that would block the natural sun light from entering into your home.
One of the most interesting ways of granting an easement is granting one by prescription. This means that the easement exists when a right has been enjoyed for a specified period of time, without interruption or consent of the landowner. Within the province of Ontario, a prescriptive easement could exist after 20 years of continuous use. When looking into the principle behind the doctrine of prescription, one could suggest that granting an easement by prescription works hard to preserve the moral views of society, and essentially can assist in the continuation of long standing traditions. When attempting to get the easement by prescription, using that area of land without interruption for a long period of time usually works as a strong precedent.
Easements are to be used out of necessity. A person needs to be able to show that the use of another person’s land while trying to access your land, or public land is the only way to get there. Typically, convenience is not a good enough reason to be granted the easement.
This information can be found at https://www.ontario.ca/page/easements-grants
Madison Drescher is a Student at Law at the law firm of Cobb & Jones LLP. Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice. For more articles, visit the Library page at www.cobbjones.ca.