Easement and Right-of-Way Disputes Between Neighbours in Ontario

An easement gives one property owner the legal right to use a specific part of another person's land for a defined purpose. A right of way is the most common type of easement — it allows passage across a neighbour's land, often to reach a road, garage, or landlocked parcel. Easements can be enormously valuable and extremely contentious: they attach to land, survive ownership changes, and are notoriously difficult to remove once established.

When a neighbour blocks access, builds over an easement strip, or disputes whether an easement exists at all, the conflict can halt construction, cloud a property sale, and damage the relationship permanently. This article explains how Ontario law creates, enforces, and extinguishes easements — and what your options are when a dispute arises.

How Easements Are Created in Ontario

Express Easements

Most easements are created in writing — in a deed, transfer, or agreement that is registered on title. When you buy a property, a title search will reveal registered easements. Always read the title documents before assuming your land is burden-free.

Implied Easements

Courts will sometimes recognize an easement that was never written down. Two important implied easements arise under Ontario common law:

• Easement by necessity: If a parcel of land has no access to a public road except over a neighbour's land, a court may imply an easement of necessity. The party claiming the easement must show that the land is genuinely landlocked and that the landlocked situation arose from a common origin of title.
• Easement implied from prior use: If a previous common owner used one part of the land to benefit another part, and then sold the parts separately, a court may imply that the easement passed with the sale — even if it was never written down.

Prescriptive Easements

A prescriptive easement arises through long use. Under Ontario common law, a person who uses another's land openly, continuously, and without permission for the required period may acquire an easement. As with adverse possession, the Land Titles Act has substantially curtailed prescriptive easements for land in the land titles system — verify the current state of law with a lawyer.

What a Valid Easement Requires

Not every helpful path across a neighbour's land is a legal easement. To be legally enforceable, an easement generally requires:

1. Two distinct parcels of land — a "dominant tenement" (the property that benefits) and a "servient tenement" (the property that is burdened).
2. The easement must accommodate the dominant tenement — it must benefit the land itself, not just its current owner personally.
3. The parcels must be owned by different people — you cannot have an easement over your own land.
4. The right must be capable of forming the subject matter of a grant — it must be sufficiently definite and certain.

Common Easement Disputes Between Neighbours

"The Easement Doesn't Exist"

One neighbour claims there is a right of way; the other says there is not. This usually requires digging into historical title documents, plans, and correspondence. Courts look for the original grant or the circumstances giving rise to an implied easement.

"You're Exceeding the Scope of the Easement"

Even if an easement exists, its scope matters. An easement for pedestrian access does not permit vehicle traffic. A drainage easement does not permit parking. A utility easement does not allow a fence to be built over the pipe. The scope is determined by the language of the original grant and the purpose it was intended to serve.

"You've Blocked My Easement"

If the servient owner (whose land is burdened) blocks, obstructs, or interferes with access, the dominant owner (who benefits) can seek court relief. Options include:

• A court declaration confirming the easement.
• An injunction requiring the obstruction to be removed.
• Damages for losses caused by the interference.

"The Easement Has Been Extinguished"

Easements do not last forever in all cases. An express easement can be released by the dominant owner in writing. An easement may also be extinguished if the same person comes to own both parcels (merger), or in some circumstances through prolonged abandonment — though courts apply a high bar for abandonment.

Practical Steps When a Dispute Arises

Before calling a lawyer:

1. Retrieve the title documents for your property and check for registered easements.
2. Get a copy of the plan of survey, if any, that shows the easement strip.
3. Photograph any obstruction or alleged easement path.
4. Note when the dispute started and any communications with your neighbour.

With a lawyer:

• A lawyer will conduct a full title search and advise whether the easement exists, how broad it is, and what remedies are available.
• In many cases, a strongly worded letter from a lawyer resolves the dispute without litigation.
• If litigation is necessary, the Superior Court of Justice has jurisdiction to determine easement rights and grant injunctions.

Selling Property With an Easement Dispute

If you are selling and a neighbour is contesting an easement, disclose it. Unresolved easement disputes can kill a real estate transaction and create liability for sellers who failed to disclose known defects. Resolve the dispute or obtain title insurance that covers the specific issue before listing.

Frequently asked questions