What Does an Easement Mean?
What You Should Know
- An easement is a right that lets someone use your land for a specific purpose.
- The most common easement is a right of way, which lets someone pass through your property.
- Dominant tenement is the property whose owner enjoys a right over another property.
- This other property is referred to as servient tenement.
An easement is a right that allows a third party to use your land for a specific purpose. The most common easement is a right of way, allowing one party to cross your land without trespassing. For example, a right-of-way easement with a utility company will enable them to maintain overhead wires without disputes from the homeowner. You can find any easements on your property title. Additionally, you may inherit pre-negotiated easements when buying a home in Canada. Continue reading to become an easement expert with as little as five minutes.
What Is an Easement on a Property
An easement is a legal right to use someone else's property for a specific purpose. The property owner still owns the land, but they have given someone else the right to use it in a particular way. For example, homeowners may give their neighbour an easement to use their driveway.
Easements are different from leases or rentals because they do not involve payments for the use of the property. The property owner has given someone else the legal right to use their land in a specific way.
Dominant Owner vs. Servient Lands
There are different legal names for each partner of the easement agreement. The dominant owner is the party receiving the easement benefit. For example, it could be Bell or Rogers who has the right to access your property for utility maintenance. In contrast, the servient lands are the property subject to the agreement. They are the lands that serve the easement.
Why Easements Exist
Easements exist for several reasons:
- To allow access to a right of passage: An easement may be created to allow access through a particular piece of land. For example, you may want your neighbours to access your driveway to reach their homes.
- To allow utility or service providers to access the land: Utility companies may need to use part of someone else's property to provide services like electricity, gas, water, or sewer.
- To protect the environment: In some provinces, a landowner may implement a conservation easement. This is a voluntary restriction where a qualified conservation organization or local government becomes the dominant tenement of the protected lands. As a result, they will permanently protect the land from development and the donating owner may receive a taxable benefit.
- To preserve historical sites: Similar to environmental protection, an easement may be created to prevent a historical site from being destroyed. For example, an easement may be placed on a piece of land that contains an ancient burial ground.
What an Easement Does Not Mean
An easement does not mean the land owner has given up their ownership rights. The owner still owns the land, and they can use it as they see fit - except there is another party eligible to use the land as the easement describes.
If you are buying a property with an easement, it is essential to fully understand what limitations this may place on your land use. You should always consult a legal professional before purchasing property with any existing easements.
An easement also does not mean the land owner can never sell it. The owner can still sell their property, but they will need to find a buyer willing to accept the easement.
How to Find Easements on a Title
To find easements on your title, you need to contact the Land Titles Office or Online Property Registry where the property is located. This can be done by searching online.
Suppose there is an existing easement for access over your neighbour's driveway. In that case, you will usually see this listed on the title with information about who owns it and what purpose it serves.
For example, some provinces have websites that list all of the legally-recognized easements in the province. In many cases, these sites also include details about how long they have been active and what type of easement they are. You may also find out if there are any other types of easements on a title by contacting the appropriate government body in your area.
Buying a Home With Easements
If you are interested in purchasing a property that has an easement attached to it, it is essential to learn as much as you can about what this means and what limitations it places on your use of the land. It is also crucial to understand how to search for existing easements on titles so you can make informed decisions when buying real estate.
Selling a Home With Easements
If you are selling a home with easements, it is important to understand its implications for the buyer. You should always consult a legal professional before selling a property with any existing easements.
When selling a home with easements, you will need to disclose all of the limitations this places on the buyer's use of the land. It is also essential to find a buyer willing to accept these limitations.
If you cannot find a buyer who is willing to accept the easements, you may need to renegotiate the sale price or consider cancelling the sale altogether.
The Benefits of Having an Easement
An easement can provide many benefits to both the land owner and the party that has been given use of the land.
| Land Owner Benefits (Servient Lands) | Receiving Party Benefits (Dominant Owner) |
|---|---|
|
|
Different Types of Easements
There are two types of easements:
- Easements in Gross: These easements are not attached to any particular piece of land. This means they can be transferred or sold to someone else. Utility companies often use them, and they may not always be found on a property title.
- Appurtenant: These easements are attached to a specific piece of land. For example, an easement for access over your neighbour's driveway would be an appurtenant easement. This means it would be attached to your land, and it would stay with the ground even if you sold it.
How Easements Are Created
While an easement can be created through a will or deed, the main methods are:
- By an agreement between the parties: The two owners can simply agree to create an easement. This is often done between neighbours.
- By prescription: This is a legal term that means the easement was established by use over an extended period. For example, a prescriptive easement could be created if your neighbour passed through your property without any interruption from the land owner for 20 years.
- Judicial decrees: Courts can order specific land pieces as part of an easement. This is often done in cases where one neighbour is preventing another from using their property.
Violating an Easement Agreement
The land owner has a number of legal options available if someone violates an easement agreement. They may be able to pursue legal action against the person who broke the contract, or they may need to contact the appropriate government body to address the issue.
The Bottom Line
An easement is a legal agreement that allows a third party to use your land for a specific purpose. The most common type of easement is a right of way, which allows one party to cross through your land without trespassing.
If you are selling a home with an easement, it is important to understand its implications for the buyer. You should always consult a legal professional before selling a property with any existing easements.
An easement can provide benefits to both the land owner and the party that has been given use of the land. For more information on how to negotiate an easement or what types of easements exist, it's best to consult a legal professional.