Easement and right-of-way지역권, 이즈먼트, 통행권

What is it?

An easement is a right that someone other than the owner has to use part of a piece of land for a set purpose. You still own the land. But you cannot stop that use, and you usually cannot build on that part.

The side with the right is called the dominant land (or the right holder), and your land, which must put up with it, is the servient land. Some right holders, like a hydro company, do not own any neighbouring land at all.

A right-of-way is one kind of easement: the right to pass over your land. Typical examples are a path to a rear garage, access to a back lot that does not touch the street, and a driveway shared with the house next door.

Common types

The name matters less than the actual wording of the registered document (the instrument). How wide, for what purpose and who repairs it differ from one document to the next.

Where do you find it?

• On title: an easement is normally registered as a document on the title of the land that carries the burden. When your lawyer does a title search, the parcel register shows the instrument number, and the lawyer opens that document to read its scope. You can look on OnLand yourself, but ServiceOntario will not interpret the records, so this is your lawyer’s job.
• On the survey (SRPR): the location of registered easements is drawn on the plan. The register may say only "3 m right-of-way", but the survey shows where that strip runs through the yard.
• In the contract (APS): the standard Ontario agreement (OREA Form 100) is understood to have a title clause under which the buyer normally accepts registered easements for public services such as hydro, telephone, gas, water and cable. Confirm the exact wording in the contract you sign. Other easements can be raised by your lawyer in a requisition.
• With your eyes: a hydro pole in the yard, a manhole, a path to the house behind, or a driveway shared with the neighbour are signs that an easement exists.

Section 44 of the Land Titles Act says that, unless the register says otherwise, registered land is subject to "any right of way … and other easements". That is why you cannot assume there is no easement just because none shows on title, and why a survey and title insurance go together.

It passes with the land

An easement belongs to the land, not to a person. When you sell, the new owner takes the burden; when the right holder’s land is sold, the new owner keeps the right. A verbal promise between former owners does not end it.

To remove one, the right holder must sign a release and register it. A utility’s easement is, in practice, very hard to remove.

Creating one also needs registration. A verbal agreement with a neighbour that you may cross their driveway is not an easement. And because section 50 (3) of the Planning Act treats an agreement granting the use of land for 21 years or more as subject to subdivision control, creating a permanent easement may need a municipal consent. Always do it through a lawyer.

It is your land, but what can’t you do?

• Inside a utility easement strip you usually cannot place a garage, shed, pool, deck footings or large trees. The document says what is allowed (lawn, low fences, paving, for example).
• On a right-of-way you cannot lock a gate, put up a fence or park a car that blocks the route.
• A mutual driveway is the neighbour’s route too. Leaving your car on it so the neighbour cannot get through leads to disputes, and the same applies to them.
• You cannot stop the right holder from entering to do work or repairs. Who restores the ground afterwards depends on the document.
• If you plan an addition, check the easement’s location and width first. Even with a city permit, the right holder (a neighbour or utility) may object to work the easement document does not allow. Check with the city’s building department and your lawyer.

Effect on value and use

A narrow strip along the back fence for hydro wires is common and normally makes little difference to price. A wide easement across the middle of a yard, or a right-of-way that lets strangers drive through your property, cuts down what you can do with the land and can put buyers off. The real effect differs by property, so judge it from comparable sales and an appraisal.

With a mutual driveway you cannot widen the drive on your own or build a garage that changes the route. Sharing snow removal and paving costs with the neighbour is the usual practice, but no law sets the split. Your relationship with the neighbour affects how you use the home.

If your land is the one with the right (for example, a right-of-way through the back lot to your garage), what matters is that the right is registered. An unregistered "custom" is not guaranteed to the next owner.

Example

What to watch out for

• Do not stop at the instrument number on the parcel register; read the document itself. Ask your lawyer exactly where the easement runs and what it is for.
• If the survey is old, easements or paths created since may be missing. Many buyers take title insurance instead of a new survey, but insurance does not tell you where the boundary is.
• If you plan an addition, a pool or a garage, check the easement location before you make an offer. Zoning may allow the work, but the easement may still stop you from building there.
• If your access depends on a neighbour’s land, there must be a registered right-of-way. If there is none, make creating one a condition or talk to your lawyer before you buy.
• A structure built in breach of an easement can be ordered removed, and a dispute with a neighbour can end up in court.