The Easement Hidden Behind a Kitchener Backyard

The situation

Kasia and Zofia had lived in the same two-storey house for close to thirty years. With both of them retired — Kasia from a career as a physiotherapist, Zofia from a long run as a sales director — the stairs and the size of the property had stopped making sense. They agreed on a bungalow in Kitchener, listed by a seller named Reza, with a deep backyard that Kasia planned to fill with raised garden beds and a covered patio where their grandchildren could stay over in the summer. The purchase price was agreed at roughly $950,000, and the agreement of purchase and sale set a closing date about six weeks out.

The couple had sold their previous home decades earlier, before either of them had bought or sold much property, and neither had a strong sense of what a lawyer actually checks for between an accepted offer and a closing date. They retained our firm shortly after the agreement was signed, expecting a straightforward file: review the agreement, order the usual searches, and prepare for closing.

Kasia had already spent an afternoon sketching the backyard on graph paper — the raised beds along one fence line, a gravel path, and a covered patio roughly centred on the rear third of the lot, where the ground was flattest and caught the least wind. None of that planning touched the legal file directly; it simply meant that when the search results came back, the location of the restriction was not an abstract line on a survey. It ran straight through the one part of the yard they had already decided mattered most.

What the title search found

Ontario land is registered on an electronic system, and a title search pulls up every registered instrument affecting a property — mortgages, liens, and also easements. An easement is a registered right that lets someone other than the owner use part of the land for a specific purpose, permanently, regardless of who owns the property later. It runs with the land, not with any particular owner, which is exactly why buyers need to know about one before they close rather than after.

Our search turned up a registered easement in favour of a utility company, granted decades earlier by a previous owner, covering a strip roughly along the rear third of the lot. It permitted the utility to maintain underground infrastructure in that area and, critically, to restrict permanent structures above it — no sheds, no decks with footings, no plantings with deep root systems in the reserved strip. Nothing in the listing, the seller's disclosure, or the agreement of purchase and sale had mentioned it.

This mattered a great deal to Kasia and Zofia's plans. The covered patio they had already been picturing sat almost entirely inside the restricted strip. If they closed without knowing, they would have owned a backyard that could not be used the way they intended — and found that out only once they applied for a building permit or broke ground.

It is worth understanding why a homeowner rarely notices an easement like this in day-to-day life. Nothing about the yard looked different from any other yard on the street; there was no visible marker, no fence, no sign warning that a utility company had rights below the surface. The restriction only becomes visible on paper, in the land registry, which is precisely why a title search matters more than a walk-through. A buyer can look at a property a dozen times and never see the one thing that limits what they are actually allowed to do with it.

What we did

1. Confirmed the scope of the easement before raising it. An easement found on a title search can mean many different things depending on its wording — some permit almost nothing above ground, others are narrow and rarely enforced in practice. We obtained the full registered instrument, not just the reference to it, and read the actual restrictions rather than assuming the worst or the best.
2. Contacted the utility company directly. Registered easements sometimes describe rights the utility no longer actively uses, or infrastructure that has since been relocated. We requested written confirmation of what currently ran through the strip, how far the restriction extended from the buried line, and whether above-ground structures like a pergola or planters — as opposed to a deck with concrete footings — would conflict with it.
3. Raised a requisition with the seller's lawyer. Under a standard agreement of purchase and sale, a buyer has a defined window to raise objections to title — called requisitions — and an undisclosed easement of this kind is a textbook example of what that window exists for. We put the issue in writing formally, which preserved Kasia and Zofia's right to require the seller to address it or to walk away from the deal if it went unresolved.
4. Negotiated a resolution that kept the deal alive. Once the utility confirmed the buildable envelope in writing, we had something concrete to negotiate around: the patio could be relocated a few metres forward on the lot without losing much of the intended space, but that meant regrading and a shorter run of interlocking stone than the couple had budgeted for. We negotiated a price credit from the seller of roughly $12,000 at closing to cover that adjustment, in exchange for withdrawing the requisition and proceeding.
5. Documented everything for the closing file. The utility's written confirmation and the amended closing statement reflecting the credit were both retained with the file, so that if a future buyer — or Kasia and Zofia's own contractor years from now — ever asked what could and could not be built on that strip, the answer would not depend on anyone's memory.

The outcome

The purchase closed on the original date, with the $12,000 credit applied against the purchase price at closing rather than paid separately. Kasia and Zofia moved in with a clear, written understanding of exactly where the easement's restrictions began and ended, and a revised landscaping plan that put the covered patio just outside that line. The garden beds, which needed nothing more than shallow soil, stayed roughly where they had originally planned — the utility's restriction was aimed at deep-rooted planting and permanent footings, not raised beds sitting on the surface.

Because the easement was identified and resolved before closing rather than after, the couple never lost the use of the strip in a way that mattered to them; they simply built around it with full information. The alternative — discovering the restriction only after ordering a building permit for the patio, or worse, after pouring footings that then had to be removed — would have cost far more than the credit they negotiated, both in money and in the disruption of undoing finished work.

The seller, for his part, avoided a collapsed deal at a point in the season when relisting would have meant carrying two properties or losing a chain of dependent closings on his own next purchase. A price credit is, in most cases, a far better outcome for a seller than a terminated agreement, and Reza's lawyer recognized that quickly once the requisition was on the table with the utility's confirmation attached.

A few months after moving in, Kasia mentioned during a file follow-up that the relocated patio had turned out to work just as well as the original plan — arguably better, since it sat closer to the kitchen door. That is not always how these situations end. Sometimes an undisclosed restriction forces a buyer to walk away entirely, or to accept a compromise that genuinely costs them something they wanted. In this case, catching the issue early meant the couple got to make that trade-off deliberately, with real numbers and real facts in front of them, instead of discovering the limits of their new backyard by accident.

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