It is not uncommon for someone to need to use or cross land owned by another for a specific purpose. Whether it’s a shared driveway, access to utilities, or a right-of-way to a landlocked parcel, the law provides mechanisms to facilitate such uses. This primer will explore the fundamental principles of easements, those legal rights that allow individuals to utilize another’s property for defined purposes, offering a practical understanding of this complex area. We’ll examine the distinctions between licenses and easements, the requirements for establishing an easement, and the various methods by which they are created, providing a comprehensive overview of this vital legal concept.
License Vs. Easement
The extent of the right to use the land of another will depend on whether that right is characterized as a license or an easement. If the permission to use another’s land is given to you alone, then it is generally a personal right known as a license. If the permission was intended to attach to your land and benefit that land, then it likely constitutes an easement. In the law of easements, the land that benefits from the right to use another property is known as a “dominant tenement,” while the land being used is known as a “servient tenement.”
Revocability & Proprietary Rights
In Mihaylov v. 1165996 Ontario Inc., the Court of Appeal described the difference between a license and an easement by observing that a license is “neither connected to the use of any lands which you might own nor does it amount to an estate or an interest in my land.” It is simply permission granted to someone to do something that would otherwise constitute trespass. It is generally also revocable at any time (unless the people involved in the license agree otherwise).
However, an easement is a “proprietary right.” Generally, whoever owns or occupies the dominant tenement may exercise that right. Likewise, whoever owns or occupies the servient tenement must permit the exercise of that right over their land. Where the owner or occupier of the dominant tenement is prevented from exercising their easement rights, they can seek a court order requiring compliance by the owner or occupier of the servient tenement.
So, what is required to establish an easement?
Requirements For an Easement
To establish an easement, four requirements must be met:
- There must be both a dominant and a servient tenement;
- The dominant tenement must be “accommodated” by the servient tenement;
- Different people must own the dominant and servient tenements; and
- The right in question must be capable of “forming the subject matter of a grant.”
Courts have clarified that the second criterion above effectively means that the easement must be “reasonably necessary for the better enjoyment” of the dominant tenement. Whether something is “reasonably necessary” will depend on the nature of the property and the purpose of the easement (see Barbour v. Bailey). This criterion will often be met if the easement provides a “very practical purpose,” such as a driveway or a parking space.
The fourth criterion above will generally not be met if the easement rights at issue are ones of “mere recreation and amusement.” Instead, the rights must be of utility and benefit to the dominant tenement (dominant estate). They must not be “too vague” and must not “substantially deprive the owner of the servient property of proprietorship or legal possession” (see Combined Air Mechanical Services Inc. v. Flesch).
How Are Easements Created?
Easements By Express Grant
Easements are usually created through a written agreement. For example, we have previously written about utility easements and how they are created in such agreements. Easement agreements usually contain descriptions of the affected properties and the rights granted in relation to them and often address issues such as maintenance and termination. To be enforceable, such an agreement must be in writing to ensure compliance with the Statute of Frauds.
In addition to written agreements, easements can be created by operation of law. Two of the primary easements created by law are discussed below.
Easements By Necessity
Where land is subdivided, and one part is sold, an easement of necessity may be presumed if the sold land is inaccessible “except by passing over adjoining land retained by the grantor” (see McClatchie v. Rideau Lakes (Township) ). The easement generally must be necessary to use or access the sold property. Usually, mere inconvenience will be insufficient to lead a court to imply such an easement, and necessity is to be determined as of the time of the original grant (see Thompson v. Lidtkie).
Easements By Prescription
The Superior Court of Justice recently discussed prescriptive easements in Kelian v. Trafford.The Court explained that such easements can be created simply by using land over time. To establish a prescriptive easement, a person must generally prove “a continuous, uninterrupted, open and peaceful use of the land,” typically for a period of 20 years.
In addition, the use of the land must not be with the permission of its owner. For example, if the servient land owner gives someone verbal permission to use their land, that will be fatal to a claim for a prescriptive easement.
Courts have also said that where a right to use land is acquired by prescription, the use and character of the dominant tenement cannot be changed to substantially “increase or alter the burden upon the servient tenement” (see Thompson). This also includes the intensity of use of the dominant tenement. For example, the right to park a vehicle on your neighbour’s land does not necessarily extend to parking a dozen vehicles on that land.
A Cautious Approach
A claimant may rely on the use of land by previous owners to make up the requisite period of “as of right” use (see Carpenter v. Doull-MacDonald). Case law has indicated that courts should be cautious about finding prescriptive easements since they subject the servient land’s owner “to a burden without compensation” (see Kelian).
It is also important to note that registration of land under the Land Titles Act may affect the ability of a party to claim a prescriptive easement. Since this is a complicated area of the law, legal advice is highly recommended to anyone pursuing an easement in this manner.
Bader Law: Advising Property Owners on Land Use Rights in Oakville
Whether you’re facing complex easement disputes, seeking clarity on property rights, or require dependable counsel on real estate transactions, Bader Law is here to assist. Our seasoned real estate lawyers, serving Mississauga, Oakville, and the broader Ontario region, provide comprehensive guidance to both residential and commercial property owners.
We understand the intricacies of easements and are dedicated to protecting your interests, from reviewing existing agreements to enforcing your rights against potential infringements. With experience spanning diverse legal domains, including business law, corporate transactions, and estate planning, we offer comprehensive solutions tailored to your unique needs. If you are seeking strategic advice and effective representation concerning your land use rights, contact Bader Law online or call us at 289-652-9092 to schedule a consultation.