What an Easement Means for Your BC Property

You have found an easement on the title of a property you own or plan to buy. It may let a neighbour cross your driveway, or let a utility run lines across your yard. You probably want to know what you can still do with the land, and whether the easement can ever change.

This article explains how easements and statutory rights of way work in British Columbia. The terms of each one are in its registered document, so the specifics of your property matter.

This article covers the law of British Columbia.

What an easement is and who benefits

An easement is a right to use part of someone else's land for a limited purpose, such as access. It is created by a registered instrument, such as an easement agreement, or shown on a registered plan. The land that benefits is the dominant tenement, and the land that carries the burden is the servient land.

When an easement benefits other land, the registrar endorses it against the title of the dominant tenement. On transfer of that land, the benefit passes without express mention. The endorsement on the dominant title does not record the burden on the servient land.

Statutory rights of way are a different kind

You may also see a statutory right of way. Under section 218(1) of the Land Title Act, it may be granted in favour of the Crown, a Crown corporation or agency, municipalities, regional districts and certain other local bodies, water users' communities, public utilities, specified pulp, timber, mining, railway, smelting and pipeline corporations, and any other person the minister designates.

It is an easement without a dominant tenement, for purposes needed to operate and maintain the grantee's undertaking, including a right to flood. Registration creates a charge on the land in favour of the grantee, and its terms bind and benefit the grantor, the grantee and their successors in title, unless a contrary intention appears.

• If it covers only part of the land, the registrar endorses only that portion.
• If it includes access rights over all of the land, it is registered against the whole property unless the applicant applies for two rights of way.
• For Agricultural Land Reserve land, a right of way applied for since September 30, 2020 must include the prescribed notice form under section 18.1(3) of the Agricultural Land Commission Act.

If you sell, section 218(4) relieves a grantor of liability for breaches of the right-of-way covenants that occur after the grantor ceases to own the land.

Special cases in how easements arise

An owner may grant an easement over one of their own parcels for the benefit of another parcel they own, under section 18 of the Property Law Act. Where an easement benefits common property, both the common property and each strata lot must be named as dominant tenements.

In encroachment cases, the court may grant an easement under section 36 of the Property Law Act. An example is a building that crosses a boundary line.

Changing or ending an easement

A person interested in land may apply to the Supreme Court under section 35(1) of the Property Law Act to modify or cancel an easement, a statutory right of way, or a covenant burdening the land. The court may do so if the application is not premature and a listed ground applies, including that the charge is obsolete, that it impedes reasonable use without practical benefit to others, that the benefited parties agreed, or that the change will not injure the person entitled to the benefit.

The court may require compensation for anyone damaged, must direct inquiries to public authorities and notice to those who appear entitled to the benefit, and its order binds all persons. The registrar then amends the records on production of the order.

If the people who benefit from the easement have agreed to the change, that agreement is one of the grounds the court can consider. Whether there is another way to end or change a particular easement depends on the registered instrument, so it is worth confirming with a lawyer.

What to do next

• Order the title and the registered easement document; a fee applies.
• Work out whether it is an easement or a statutory right of way, and who benefits.
• Read what activity it allows and what you must keep clear.
• Look at the registered plan if the easement is shown there.
• Get legal advice before building near it or seeking to change it.

The LTSA does not answer questions about title contents. Registry agents and other professionals can order records and help interpret a title.

Frequently asked questions