The word easement appears in almost every Agreement of Purchase and Sale. It is a common term, but often misunderstood. Whether you own a property or are considering the purchase of a property, it is important to understand what an easement is.
Easements are an important part of our property law system. They give certain rights to others, such as municipalities and utility companies to use part of your land or to access services that may run with your land.
An easement is the right to enter on or use another person’s land for a specified purpose. An easement does not create an ownership right, it merely creates a right to use property that may be owned by another party.
An easement is often related to a specific piece of land so that even when the land is sold, the rights and obligations relating to the easement remain with the particular piece of land.
The most common examples of easements are utility easements. These are typically easements in favour of utility or telephone companies which gives the company the right to install, operate, maintain and repair utility poles or underground power lines. For the a homeowner whose property is subject to an easement, it would not be advisable risky to build a permanent structure like a swimming pool over the easement as it may have to be removed at the expense of the owner.
Another common easement is a municipal easement. These are common in new homes where the builder will reserve a right of re-entry to enter the land to repair the grading of the land, if necessary. This easement may expire after a certain period, for example, 10 years from the title transfer date or when the municipality assumes the services within the subdivision.
A more complex type of easement is a mutual easement between two adjoining properties. These are common in older parts of the city where owners may share a mutual driveway. This may also occur where houses are built closely together and the owner of one property has a right of way over another property in order to access, maintain and make repairs to its property. In some cases, there will be disputes between neighbours over the use of the easement. This can usually be resolved by looking at the title to the properties to determine if the use of the property is within the scope of the rights set out in the easement document registered on title.
Easements can be problematic for those owners who want to change the use of their property or build an addition such as a swimming pool. Prior to buying a property with the intention of changing its use, it would be prudent to retain an experienced lawyer for advice. A title search and a survey would disclose the existence and extent of any easements that could prohibit a buyer’s future use intentions. It would also be advisable to check with the municipality to determine if there are any unregistered easements on the property.
Most Agreements of Purchase and Sale make reference to the buyer agreeing to to accept title to the property subject to minor easements for utility, telephone, cable or storm and sanitary sewer easements, provided that they do not materially affect the use of the property. Therefore, if you are buying a property and are concerned with easements that may affect your use and enjoyment of the property, you should make some inquiries so that you are not disappointed to learn that you cannot use your property the way you envisioned.