What’s On My Title Search: Easements

Disclaimer: This article is intended for the purposes of providing information on easements only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Surprises can be fun. However, when it comes to your home purchase, we agree with Jane Austen when she said, “Surprises are foolish things….and the inconvenience is often considerable.”

It’s indeed an inconvenience to purchase your home, only to realize that there are easements that impact how you use your property. That is why performing a title search is a vital step in your real estate closing.

One item that is commonly registered on title is an easement. At Beeksma Law, we are passionate about empowering people to understand the law. This article will outline what an easement is and why it matters when purchasing your home.

What Is An Easement?

Generally speaking, an easement is defined as“a right or interest annexed to land, which permits the owner of the dominant land to impose restrictions on the owner of the servient land as to its use.” 

So let’s break that down. An easement involves two pieces of property – the dominant land and the servient land. The owner of the servient land allows the dominant owner use or access to a portion of its land.

Note: An exception is an easement in gross. This easement attaches to no specific piece of land, but rather exists for the benefit of a particular person or company. For example, a utility easement would be an easement in gross.

What Should I Know About An Easement On Title?

When reviewing the documents that are registered on title, your real estate lawyer will review any easement agreements. She will then be able to tell you:

  1. Is the easement active or expired?
  2. Is your property the subservient or dominant property?
  3. What is the scope of the easement?
  4. Does the easement impact how you can use your property?
  5. If there is an easement on title, it’s important to understand its limitations to avoid any surprises down the road. For example, suppose you’re planning to build a garage and there is an easement for access to the property. In that instance, you will need to get permission from the holder of the easement before building your garage.

Types of Easements

Easements are granted in Ontario in several forms:

  • express easement: an easement specifically identified in a deed or other written agreement. An example would include an easement for the use of a shared driveway.
  • implied easement: arises from the circumstances, such as the use of the property over time, without any formal documentation. For example, if there is a path that has been used by the public for years to access a body of water, an easement may be implied.
  • prescriptive easement: granted to someone who has used the land for a specific period of time (usually at least 20 years), without the owner’s permission. (Note: these easements are limited to properties that are registered under the Registry System.)
  • by statute: a type of easement that is granted by law, such as an easement for utilities.

Let’s speak more specifically about utility easements. We have seen many properties with easements for the local hydro company or communication companies. The holder of the easement has the right to go onto your property to conduct repairs or maintenance, even if it means damaging your property.

Typically, these easements will prohibit you from building anything permanent in the area that is covered by the easement. For example, if you put in a pool, and the easement is for underground cables, you may be required to remove the pool at your expense if the cable needs to be accessed. Talk about a “considerable inconvenience!”

It’s important to note that you are prevented from building anything permanent. For example, you would not want to install a shed with a concrete foundation in an area covered by a utility easement. A garden, on the other hand, would usually be permissible.

Know What You’re Buying

Buying a home is a significant purchase and should not be taken lightly. Easements on title can impact how you live in your new home. Therefore, you should have all the information before deciding if it is the right home for your family.

Easements are increasingly common. Therefore, it does not mean that you should not buy a home that has one on title. It is simply important for you to understand the property you are buying so you can make the best decision for your needs.

Fortunately, you do not have to do it alone. You can work with a real estate lawyer who has the experience and expertise to help you understand what is on the title for your future home. They can also explain what that means for you.

At Beeksma Law, we believe that you should know what you’re buying. We are here to help you and build your confidence every step of the way, from understanding the legal jargon to negotiating on your behalf.

Here is what one of our clients had to say after we helped her buy her first home:

“There were so many unknowns, so your patience with me, your willingness to share and explain things in simpler ways and your shared excitement were a huge blessing.”

Contact us today for a free consultation. Let us help you make the best purchase decision for you and your family.

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