Easements

An easement is a right to cross or otherwise use another person’s land for a specified purpose. The benefiting land is called the dominant tenement and the land subject to the easement is called the servient tenement. There are many types of easements such as access easements, utility easements, drainage easements and more.

Easements also come in different forms including registered easements, easements by statute, easements of necessity, and prescriptive easements.

Registered Easements

Most easements are created with the agreement of both impacted property owners, and then are registered on title to the properties. The terms of these easements detail specific property rights and it is important that they are drafted with precision. Obtaining an easement over part of someone’s land for more than 21 years also requires the approval of the municipality’s Committee of Adjustment (or other municipal planning authority).

Prescriptive Easements

Prescriptive easements are not registered rights but are instead established by a period of 20 years of use. The user must demonstrate a continuous, uninterrupted, open, and peaceful use of the land without objection by the owner for a period of 20 years, among other requirements depending on title and the history of the dominant and servient lands.

Easements by Statute

Easements by statute are not common and are given mostly to utility companies and municipalities. Often these easements are given for the purpose of allowing a party onto the servient land in order to make repairs or maintain essential services.

Easement of Necessity

An easement of necessity may arise where land is inaccessible except by passing over adjoining land owned by another person. The easement must be necessary to use or access the property. Owners of such land may seek recourse in the courts in order to obtain an easement of necessity.

We can help draft terms of easement agreements, remove existing easements with the consent of both parties, obtain consents as may be required, confirm if prescriptive easements exist on your property, and provide you with an opinion regarding the potential extinguishment or release from an existing easement.