What is an Easement?

In simple words, an easement is a right held over a property by someone other than the owner of that property. An example of an easement could be a right of way permitting the owner of a property to access the property by passing through the neighbour’s property. An easement can also be in favour of a municipality or a utility service provider in order to allow the easement holder to access the land to repair municipal or utility equipment that belong to the city or the utility company.

An easements are not always an issue from the perspective of a buyer. The OREA Agreement of Purchase and Sale provides an exception for municipal and utility easements and provides that such easements are not be regarded as defects in title.

If a buyer is planning to purchase a property for construction or development purposes, the buyer should complete title searches before entering into the Agreement of Purchase and Sale to ensure that such easements do not impact development and construction plans.

Easements consist of the following three (3) elements to be valid: (a) a Dominant Tenement – being the property receiving benefit; (b) a Servient Tenement – the property giving the benefit; and (c) a Full Description – as in the reference plan or ‘metes and bounds’ description. An important exception exists to ‘Easements in Gross’ – such as public service easements – which are valid despite the lack of a dominant tenement. There are four (4) types of easements found in Ontario: (1) express grant, such as a right of way; (2) easement by prescription, such as an adverse possession or “squatters rights”; (3) easement by implication, such as in the scenario of row-houses; and (4) easement by status, such as a drainage or hydro easement.

An easement grants use of a part of property, but does not transfer interest. The original property owner is therefore still responsible for the taxes on the part of the property. Maintenance of the easement is usually the responsibility of the property owner, however owners can negotiate and register such arrangements during the creation or the easement.