Legal Access to Rural Land in British Columbia: Easements

A rural parcel can look perfectly reachable. There is a gravel road, a gate, a track across a neighbour's field. But whether you have a legal right to use that route is a separate question, and it is one that matters a great deal if you want to build, borrow against the land, or sell later.

This article explains in plain terms how to confirm legal access, what easements and rights of way are, and what buyers commonly do when a parcel has only informal access. It is general information, and the details depend on the specific property.

This article covers the law of British Columbia.

Physical access versus legal access

Physical access means you can get there. Legal access means you have a right to do so that does not depend on a neighbour's goodwill. A parcel with no legal route to a public road is often called landlocked.

The difference matters in practice. A seller who has used a neighbour's track for years on a handshake may have no right that passes to you. A lender, an insurer or a future buyer may also want to see that access is secure.

Easements and rights of way on title

An easement or right of way is a legal right to use part of someone else's land for a set purpose, such as a driveway, a utility line or a water pipe. When registered, it shows up on the land title record, and it can benefit your parcel or burden it.

• A right that benefits your land can give you a route to the road.
• A right that burdens your land may let someone else cross it, which can limit where you build or fence.
• The registered document sets out the details, such as where the route runs, who may use it and who maintains it.

Ask your lawyer to get and read the registered documents, not just the list of charges. Whether a described route matches the track you actually see is a question a survey can help answer.

Other rural rights that travel with the land

Access is not the only right tied to rural land. Rights under a water licence appurtenant to land pass with a conveyance of that land, and the owner must give written notice to the comptroller or a water manager before completing the disposition. A licence's obligations, including water rental payments, are tied to the land on title, so a buyer takes on the licence and its rentals. Treat any pipeline or intake route that crosses a neighbour's land the same way as a road: ask whether it is documented.

If you are thinking of dividing the land later, note that Agricultural Land Reserve land cannot be subdivided unless the Agricultural Land Commission allows it or a regulation permits it, and local zoning compliance does not guarantee that approval.

If the parcel has only informal access

Informal access, such as a verbal permission or a long habit of crossing a neighbour's land, is a risk. What you can do depends on the facts, and a lawyer should advise before you commit. Buyers commonly look at these approaches.

• Ask the seller to arrange a written easement with the neighbour before closing, and have it registered on title.
• Make the purchase conditional on legal access being confirmed, with enough time to negotiate.
• Adjust the price or walk away if the neighbour will not agree.
• Look into whether another route, such as a public road allowance, may be available, and confirm this with a lawyer and the local government.
• Avoid relying on the seller's statement alone that access is fine.

Whether a court or other process can help a landlocked owner is a legal question that turns on the situation. It is not something to plan around before you buy.

Reserve and treaty land

On reserve land, property of an Indian or a band situated on a reserve is generally not subject to charge, mortgage or seizure in favour of anyone other than an Indian or a band, though a leasehold interest in designated lands is subject to them. On-reserve housing loans from approved lenders are generally secured by a band council resolution and a ministerial loan guarantee, and the borrower must hold a certificate of possession or have been granted use of the land by the First Nation. On Nisga'a Lands, the provincial Torrens system does not apply to a parcel unless an indefeasible title application has been made. Access rights on these lands follow their own rules, so check with a lawyer and the First Nation's land office.

What to do next

• Ask the seller how the parcel is reached and whether any written agreement exists.
• Have your lawyer search title and read every easement, right of way and covenant.
• Compare the registered routes with the real driveway or road, using a survey if needed.
• Ask which neighbours or parties share and maintain the route, and who pays.
• Put legal access as a condition in your offer, with a realistic deadline.
• Do not remove conditions until access is confirmed in writing.
• Check water licence, well and ALR status if they matter to your plans.

Frequently asked questions