What should a buyer do if an easement is detected on title after entering into the Agreement of Purchase and Sale?
The answer depends on the nature of the easement.
First, it will need to be determined whether the easement is for drainage, storm or sanitary sewers, public utility lines, telecommunication lines or cable television lines. S. 10(d) of the standard OREA Agreement of Purchase and Sale provides that these types of easements do not constitute valid objections to title unless they materially affect the use of the property.
The question of whether an easement materially affects the use of a property depends on the following:
- The location of the easement;
- The size of the easement;
- The point of access; and
- The owners’ enjoyment of the property.
In summary, if the easement is a sewer, utility or telecommunication easement that does not materially affect the use of the property, you will likely not be able to object to it. However, if it is an easement that materially affects the use of the property, you can bring an application for a declaration that you are entitled to rescind the Agreement of Purchase and Sale prior to closing.
Contact us if you have any questions about the specific nature of an easement.
