Easement on Your Property Title in Ontario: What It Allows

You may have seen a line on a title search or a survey that mentions an easement, perhaps a neighbour's driveway access, a utility line or a shared path. It can be unsettling to learn that someone else has a right connected to land you own or are about to buy.

This article explains in plain terms what an easement generally is, how a registered easement differs from one that arises through long use, and what options exist when there is a disagreement. The details turn on the wording of your document and your facts, so a lawyer should review the specifics.

What an easement on title usually means

An easement is a right to use part of someone else's land for a defined purpose, such as passing over it or running a pipe or wire under it. The person who benefits does not become the owner of that land. You still own it, but your use of it is limited by the right.

A registered easement appears on the property's records, which is why it shows up when a lawyer searches title during a purchase. The document that created it is the best guide to who may use the land, for what purpose, and where. Two easements that look alike on a title search can differ a great deal in what they permit.

Registered easements and easements based on use

Not every easement starts with a registered document. A claim to a right of way or other easement based on use cannot be defeated once it has been enjoyed for the full period of twenty years. It becomes absolute after forty years, unless it was enjoyed under express consent given by deed or in writing.

This matters for buyers because a long-standing path or driveway that is not on title may still be the subject of a claim. Whether a particular claim succeeds depends on the facts of the use, so it is worth raising any such use with your lawyer before you close.

Some rights are limited by statute. For example, no person can acquire a right by prescription to the access and use of light or air. The one exception covers rights acquired through twenty years' use before March 5, 1880.

An easement is not a transfer of ownership

People sometimes confuse an easement with adverse possession, which is a claim to the land itself. An action to recover land must be brought within ten years, and when that period ends the right and title of the person who failed to act is extinguished.

For land registered under the Land Titles Act, no title or interest adverse to the registered owner can be acquired by any length of possession or by prescription. There is an exception where a first owner was registered with only a possessory title and the claimant was in possession when that first owner was registered.

Whether your parcel is in the Land Titles system, and when it was converted, can affect these claims, so confirm this on the parcel register.

Disagreements and how they are resolved

Most easement disputes come down to scope. The holder may be using more of the land than the document allows, or the owner may be blocking a route the holder is entitled to use. Reading the wording closely, and speaking with the other side, often resolves the problem before a court is involved.

• A judge of the Superior Court of Justice may grant an interlocutory injunction or mandatory order where it appears just or convenient to do so.
• A court that can grant an injunction may also award damages in addition to, or in place of, the injunction.
• The Small Claims Court hears money claims up to $50,000, not counting interest and costs.
• Where an interference substantially affects the use or enjoyment of land and is unreasonable in light of all the circumstances, it may amount to a private nuisance.

Timing matters. The basic limitation period is two years from the day the claim was discovered. A claim is discovered on the earlier of the day you actually knew the relevant matters and the day a reasonable person in your position ought to have known them. No proceeding may be started after the 15th anniversary of the act or omission, whatever the date of discovery.

There is no limitation period for a proceeding seeking only a declaration with no consequential relief, such as a declaration of where a boundary lies.

Ending or changing an easement

How an easement can be ended or changed depends on how it was created and what the document says. Owners who benefit and owners who are burdened sometimes agree in writing to release or alter the right, but the steps and the effect on title should be handled by a lawyer. If the parties cannot agree, a court application may be needed.

Be cautious about assuming an easement is gone because it has not been used or because a neighbour has said it is fine. An informal assurance may not bind later owners, and an easement on title can continue to appear in searches until it is properly dealt with.

What to do next

• Get a copy of the registered document that created the easement and read what it says about purpose, location and who may use it.
• Compare it with the survey and with what you see on the ground, including paths, fences and buried or overhead services.
• Ask the seller or neighbour about any informal use that is not on title.
• Confirm with a lawyer whether your parcel is in the Land Titles system and what that means for any claim.
• Keep photos, letters and dates if there is a dispute, and note when you first learned of the problem because of the two-year basic limitation period.
• Speak to a lawyer before you sign a release, block access or start any court step.

Frequently asked questions