- A right of way or other easement can be acquired by prescription, which requires actual enjoyment as of right, without interruption, for the full 20 years.
- For land registered under the Land Titles Act, no adverse right can generally be acquired by any length of possession or prescription, so easements and encroachments cannot ripen into rights, with a narrow exception for adverse-possession claims against a first owner registered with possessory title only.
- No one can acquire a right to light or air for a building by prescription.
An easement is a right to use part of someone else's land for a specific purpose, such as a shared driveway, a path to the street or a buried utility line. You may need one to reach your own lot, or you may discover one on title when you buy a home.
Easements can affect how you use your property and what it is worth. This article explains the common ways they arise, how long use must last in some cases, and what to check before you buy or build.
What an easement is and how you find one
The land that benefits from the easement is often called the dominant land, and the land that carries the burden is the servient land. A right of way is a common type. How a particular easement affects a later owner depends on its wording and how it is registered, so it is worth confirming with a lawyer.
The usual way to find an easement is a title search done by your lawyer before closing. Look at the wording of the registered document and any plan attached to it. An easement you did not expect, such as a neighbour's access across your driveway, is better discovered before you buy than after.
How easements are created
Many easements are created by a written agreement or grant between owners, which is then registered on title. Another way is by prescription, which is long use without permission.
A right of way or other easement can be acquired by prescription. This requires actual enjoyment as of right, without interruption, for the full 20 years. An interruption counts only if it was submitted to or acquiesced in for one year after notice. In plain words, if a neighbour objects and you simply carry on, the objection may not count as an interruption, but if you give in to it for a year, it can.
Do not confuse this with an action to recover land, which must generally be brought within ten years after the right first accrued. That is a separate rule about land itself.
Limits: Land Titles land and light and air
Whether your property is under the Land Titles system matters a great deal. Under the Land Titles Act, no title, right or interest in land registered under that Act that is adverse to the registered owner can be acquired by any length of possession or by prescription. This applies despite the Real Property Limitations Act, so encroachments and easements cannot ripen into rights after the land enters Land Titles.
There is a narrow exception. The Land Titles Act preserves adverse-possession claims against a first owner registered with possessory title only, for a person who was in possession when that first registration took place.
There is also a limit that applies everywhere. No one can acquire a right to light or air for a building by prescription. A neighbour who builds next door generally cannot be stopped on the basis that they block your light through long use.
Using, changing and ending an easement
What you may do with an easement depends mostly on its wording and the facts. If it is in a registered document, that wording is the starting point. Questions people commonly ask include:
- Who may use it: only the owner, or also tenants and visitors?
- What for: walking, vehicles, utilities or all of these?
- Who pays for maintenance, snow clearing and repairs?
- Can the route be moved, and by whom?
- How can it be ended: by agreement, by a registered release, or in some other way?
How an easement ends depends on the document and the circumstances, so get legal advice before you block, move or build over one. Acting on your own can lead to a dispute with the neighbour or with a future buyer.
What to do next
- Have a title search done and ask your lawyer to explain every easement on it.
- Compare the registered description with how the land is actually used, such as a driveway or path.
- Find out whether the land is registered under the Land Titles Act, since that affects claims based on long use.
- If you rely on informal access, such as a shared lane with no written agreement, ask whether to get one registered.
- Keep notes and dates of any objections from a neighbour.
- Speak with a lawyer before you build, fence or pave over an easement.
Frequently asked questions
Can I get an easement just by using a neighbour's path for years?
It is possible but not automatic. A right of way can be acquired by prescription with actual enjoyment as of right, without interruption, for the full 20 years. If the land is registered under the Land Titles Act, no adverse right can generally be acquired by long possession or prescription, with a narrow exception for adverse-possession claims against a first owner registered with possessory title only.
What counts as an interruption?
An interruption counts only if it was submitted to or acquiesced in for one year after notice. What that means in practice depends on the facts.
Can a neighbour gain a right to the light or air for their building?
No. No one can acquire a right to light or air for a building by prescription.
Can I remove an easement from my title?
It depends on how the easement was created and what the document says. How it can be ended depends on those facts, so it is worth confirming with a lawyer before you act.
Sources
- Real Property Limitations Act (e-Laws) — Ontario e-Laws
- Land Titles Act (e-Laws) — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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