Contrary to the popular maxim, what you don't know CAN hurt you.
If you're looking to buy Existent Estate in Ontario, make sure you know what you lot're getting. Failing to practice the proper enquiry could pb to y'all getting more than what you lot bargained for. An undiscovered easement on a holding could turn a prime investment into a privacy-lovers nightmare .

What is an Easement?

An Easement is a correct enjoyed by a dominant tenement over a servient tenement, for a purpose other than general use or occupation .

An Easement runs with the state and binds all subsequent owners. In order for an easement to exist, the properties practice not demand to be adjoining.
While that definition might sound confusing, it'south a lot simpler than it sounds. An Easement is the correct for ane property possessor to enter another's without permission.
All Easements consist of the following 3 elements to be valid:
  • Dominant Tenement (Belongings receiving benefit)
  • Servient Tenement (Property giving the benefit)
  • Full description (Reference plan or metes & premises)
*An of import exception exists to Gross Easements. These are valid despite lack of a dominant tenement. (more than on this later)
An example of an Easement on Property B in Favor to Property A

Cosmos of an Easement

There are four types of easements constitute in Ontario.

Express Grant

This is the about straightforward course of easement. It occurs when an owner grants privilege of use to another for a specific purpose. The about common manifestation of this Easement is a Right of Way.
In a Correct of Mode, the owner grants admission rights of another to pass over the country of some other. These easements are almost commonly found in rural and recreational properties (i.e. cottages) . The waterfront owner volition grant an Easement to the landlocked holding to access the shorefront .

Easement by Prescription

In this scenario, the Easement is granted due to adverse possession, or "squatters rights" . For example, an easement could be granted if an possessor builds a fence on a neighbour'southward yard. If left uncontested for an extended catamenia of fourth dimension, the fence-owner could argue an Easement exists . The burden of proof always rests on the claimant. It's important to note that an encroachment may create an easement. The easement is non the encroachment itself, simply the ramifications of the inroad.
Claiming an easement past prescription is a hard and complicated task. Merely land under the Registry System (older system of land registration) can be claimed in adverse possession. Most land has been converted to the Land Title System. Every bit such, Department 51(1) of the Land Titles Human activity, R.Southward.O. 1990, c.L5, states that no championship could be acquired past "length of possession or by prescription".

Easement past Implication

Two adjacent belongings owners may encounter a scenario in which an Easement exists by Implication . The nigh common case being row-houses, in which the "party wall" is integral to the structure. In this example, an Easement exists by necessity. Owners may enter into a "Party Wall Understanding" in which promises are fabricated to maintain their corresponding sides, perform routine inspections and maintenance, and ensure adequate burn separation .

Easement by Statute

Public Services in Ontario can create Easements to ensure access to their facilities and equipment . Examples include an Easement for utilities or an Easement for drainage and sewer.
These are referred to as Easements in Gross. An Easement in Gross does not behave the requirement of defining a ascendant tenement. In Subdivisions, its common for the programmer to requite a Gross Easement to the Utility or Telecommunications Visitor for the purposes of access and maintenance of their equipment. This Easement, while not an Easement by Statute, is the most common example of an Easement in Gross.
A Drainage Easement is another prime example of an Easement in Gross. A mutual requirement of a Subdivision Agreement between a Developer and a Township may require an easement for drainage to be registered on championship to the saleable properties. These easements are typically temporary in nature, and allow the Municipality (or its designated authorities) the ability to enter the individual land of the homes and bear on grading changes to the soil to ensure proper drainage from private properties into the storm drains.

Termination of an Easement

There are three situations in which an Easement ceases existence.

Merge

The easement ceases to exist if the dominant and servient tenement are the same owner.

Release

At whatsoever time, the dominant tenement (receiving the benefit) may release the Easement.

Cessation of Purpose

An Easement ceases to exist if it no longer serves purpose. For instance, a programmer demolishes a townhouse and the party wall no longer exists. It's important to note here that non-utilize of the Easement is not sufficient evidence for cessation of its purpose. The case police force varies on this affair and skillful advice should be sought.

Responsibility of the Easement

An Easement grants employ of a part of property, merely does not transfer interest. Equally such, the original property owner is still responsible for the taxes on the part of the property.
Maintenance of the easement is usually the responsibility of the property owner. Owners tin negotiate and annals such arrangements during creation.

Easement, License, and Lease

A license grants interest in all or a portion of land for a specific flow. A lease is a form of license that grants exclusive utilise for a stipulated length of time.
An easement differs from a license or lease in that the interest exists until terminated.

Easement Records

According to Department 23 of the Registry Act, Ontario, easements must exist descriptive to exist enforceable . Acceptable descriptions include a reference plan, or metes and bounds descriptions. This applies to all Easements registered on or after January 1, 1967.
In present day, most owners or Lawyers choose to register the Easement on Title. A Certificate is registered in the parcel annals of the servient and, sometimes the dominant property. This was not e'er the case. To ensure the possibility of Easement is thoroughly explored, lawyers recommend performing a Parcel Search of the subject property, as well as all adjacent properties . You can request a search at the region'due south assigned State Registry Offices, or via Teranet.
Title Records held at the Country Registry Offices are just an archive of documents affecting a particular property. Its of import to note that failing to properly register and report an easement does not necessarily disqualify its existence. Similarly, registration (or discovery) of an easement on title does not guarantee its legality or its enforceability.

The Ontario Understanding of Purchase and Auction

OREA's Understanding of Purchase and Sale protects purchasers from undisclosed easements. According to Clause 10, if the solicitor discovers an easement on or before the requisition date, the purchaser can object . The clause excludes minor easements for public services and utilities.

Volition an Easement Affect Property Value?

There's no "rule of pollex" about how an Easement to property will affect its value. If the Easement (as with all improvements) adds value to the land, then you lot may want to marketplace its advantage. However , subjecting your property to an Easement doesn't immediately decrease its value.

Decision

Easement's are a complicated and various topic. While this guide provides a deep caption of Easements, its not conclusive. If yous take questions, Contact ReaLawState for a free consultation.