Easements

Historically, servitudes are creations of Roman law and include any right of use given to a person, over the property of another. Easements are the most common form of servitude known to common law.

In the law books, easements are also classified as an incorporeal hereditament, which means that they are intangible rights, although attached to something tangible, and inheritable.

Easements are very common.

The most common is the right of way but easements also cover other activities which would normally be considered as nuisance under tort law if it were not for the easement, such as smoke, noise, tunnel or water run-off (for more information on Nuisance, see Canadian Tort Law: Nuisance).

There are said to be four requirements to a valid easement:

  • There must be a dominant tenement and servient tenement. The easement must somehow be attached to a dominant tenement; they cannot exist "in thin air." But some provinces have passed laws exempting governments from the requirement of a dominant tenement, for such things as railway or pipeline right-of-ways.
  • The easement must benefit or accommodate the dominant tenement somehow. Easements are a burden so they will only be tolerated if there is a reciprocal improvement or benefit to another tenement or land.
  • The same person cannot own and occupy both the dominant and servient tenement. So a tenant can benefit from an easement granted by a landlord.
  • The easement must be capable of forming the subject matter of a grant. This requirement means that both the person giving and the person receiving the benefit of the easement must have legal capacity, the easement cannot be too vague nor can it require an outlay of money, with the exception of fencing easements.

The case law is very important in the field of easements.

Re Ellensborough Park reiterated the four requirements of a valid easement listed above.

Phipps v. Pears was concerned with the proposition that a right to light could form an easement. In this latter case, the court noted that to enforce such a thing would stop demolition of old buildings and "hamper legitimate development."

An easement can be created by contract, deed or even by verbal agreement if the latter is followed by some type of action which supports the evidence of a verbal agreement.

This is what happened in Laurie v. Winch. In this latter case, the court also held that an easement survives a subdivision and even a change of use (from farmland to residential) in the dominant tenement.

But in Pearsall v. Power Supermarkets Ltd., the court ended an easement when the sale of a dominant tenement to a department store altered a right of access to a small house to an access to a busy commercial parking lot.

Easements can also be implied, under principles set out in Wheeldon v. Burrows.

In Wheeldon, the British court acknowledged an easement could be created when land was subdivided and referred to a "quasi-easement" (a right which would be an easement if it were not for the fact that the dominant and servient tenements were owned by the same person) and, also, that if a seller of land wishes to reserve an easement for himself or to benefit future purchasers, then it must be in the contract of sale, with the exception of right-of-ways, easements of necessity.

The requirement that an easement, to be reserved for the prior owner, must be agreed to in the contract of sale, was re-emphasized in In Re Webb's Lease.

Wong v. Beaumont Property Trust Ltd. was a case which granted an implied easement, without which the business purpose for which the premises were overtly acquired, would not be possible.

Easements can also be created by prescription, where use was made of the right-of-way as if the user were entitled to it.

In other words, the use cannot be through the use of force, secret or illegal. If a lock had to be broken to use the property, prescription does not run.

If a license has been given (i.e. permission), this negates prescriptive easements as well.

In this area of the law, provincial prescription or limitations legislation is omnipresent and may well alter the rule of law in any given province.

Temma Realty v. Ress Entreprises is a legal case where easement by prescription is discussed. In Temma the court said

"... the tendency of the courts is to lean against a doctrine that would permit ... neighbourly accommodation from ripening into a legal right as against the true owner."

For a discussion on the extinguishment of an easement, ostensibly by disuse or abandonment, see the case Treweeke v. 36 Wolseley Road Ltd. in which a petition for extinguishment on grounds of abandonment is dismissed by an Australian court suggesting that they are "perpetual in nature" unless some form of acquiescence to extinguishment on the part of the owners of the dominant tenement can be found.

Covenants

Covenants are private contracts that place restrictions on land use.

Neighbourhood consistency, condominium use, heritage building protection and shopping mall usage are examples of land use controlled by covenants.

The party that is burdened by the covenant is called the "covenantor" and the party benefitting from the covenant is called the "covenantee."

Some of the principles that govern covenants are that the covenant "touch and concern" the dominant tenement (to borrow from the terminology used in discussing easements above).

In other words, the restriction must either affect the value of the land or somehow relate to it's occupation.

A restriction on land use would meet this test but a restriction on the sale or occupation by a certain racial group, for example, would not since it has nothing to do with occupation.

In another oddity of English law, it is said that the common law does not recognize or enforce land-use restrictive covenants. This is one reason why condominium law was introduced in Canada by statute, to allow land owners some means of privately controlling land use and promoting a "life style."

But restrictive or negative covenants can be enforced under equity. Thus, an 1888 case called Tulk v. Moxhay set down a series of rules that must be met if the restrictive covenant is to be enforced.

  • The covenant must be known by the purchaser before purchase.
  • The covenant must have been made for the protection of the land at the time the covenant was made.
  • The land must be ascertained or ascertainable from the document.
  • It must be intended that the burden was to run with the covenantor's land.
  • The covenant must be negative in substance.
  • The covenant is subject to the general limitations of equity the most important being that it shall not be imposed on a bone fide purchaser without notice.

In some provinces, it may be possible to register a restrictive covenant.

The means of ending covenants differs from province to province. In British Columbia, the Property Law Act (as of 1997) provides a concise list of reasons:

  • if the covenant has become obsolete by reasons of change in the character of the land;
  • the reasonable use of the land will be impeded, without practical benefit to others, if the covenant is not canceled;
  • the covenantee(s) have agreed, expressly or impliedly, to terminate the covenant;
  • cancellation will not injure the covenantee; or
  • the covenant is invalid, expired or unenforceable and should be canceled.

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