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You might be surprised to learn that you have to work around a property easement once you've found the ideal Waterloo region home. Because the rights granted by an easement may affect your privacy and future plans for the land, you'll want to include learning about easements among your steps to buying a house.
What is an easement on a property?
An easement allows someone else to use your land for a defined purpose. Access to shared driveways or sidewalks, utility company access to cables and pipelines, or access to a pond or hunting land adjacent to the property are all examples of common easements. An easement might be undesirable in some situations, such as when it permits someone to cross your land to go to theirs.
As a homebuyer, you should check to see if the property has an easement before making an offer. If you hire a real estate attorney or a title company, they will conduct an easement search on your behalf. Your real estate agent should be able to explain the easement discovery process too, and may even be aware that an arrangement exists that they can explain to you from the start.
Before making an offer on a property with an easement, you'll want to determine whether the property you're buying is the dominant or servient property. If you own the dominant property, you're the easement user, and you can use it as much as you like according to the rules of the easement, which is usually whenever it's reasonable.
If you're bidding on the servient property, you must agree to let the dominant property owner use it according to the terms of the easement. Here’s a rundown of the most common types of easements used in Canadian real estate today.
Common types of easements and how they affect you as a property owner
Utility easement
This sort of easement allows public utilities, such as gas, electric, water, and cable/internet companies, to access and maintain equipment on your property in order to offer services to the entire community. This easement does not grant a utility company the power to do whatever they want on your land; rather, it grants them the right to take necessary actions for the sake of the community.
Without your approval, the utility provider may install underground lines or utility poles, for example. A utility easement can also limit your own actions on your property that could interfere with power lines, such as planting a tree.
Public easements
These easements allow the general public to utilize the area in accordance with the terms of the easement. If you have a pathway in your backyard that leads to a local park, for example, anybody can use it at any time if the town or city has been granted an easement.
Easement appurtenant
This kind of easement is attached to the property and stays in place even if the ownership changes. An easement on a property that provides the only access to a private fishing pond shared by two neighbours is an example of this. Because the easement is transferred with the residence, the new owners must continue to allow their neighbours access to the pond through the easement.
Easement in gross
An easement in gross is tied to a person or entity, not the property, such as utility easements. Another example could be an easement that allows a friend to hunt or fish on your property. Because you granted the easement to a specific party, the easement is irrevocable until you, as the easement holder, pass away or sell the home.
Upon the sale of a property, the seller may transfer the easement in gross to the new owner, but they can choose to deny the easement. However, if the easement has been granted to a public entity like a utility company, the public entity could challenge the denial in court. A new homeowner can also transfer the easement to a new servient property, but the dominant easement holder cannot transfer their rights.
Such as in the fishing pond example above, your friend cannot transfer the easement to another person and give them rights to use your property. Neither can the utility company transfer its easement to another company without your consent as the property owner. Any new homeowner buying a new property must file for a new easement.
Implied easements
Implied easements aren't usually written contracts. If two neighbours agree to use the property in a specified way over time, an implied easement can be used as a legal basis for the party who isn't the owner to obtain an easement. If a dispute develops, the easement will be based on this habit or historical use pattern. An implied easement is one that does not appear on a deed and can be contested if the land is sold.
Prescriptive easements
When someone freely utilizes your land for a defined purpose for a set period of time, they have a prescriptive easement. Consider the case where your neighbour uses your property as a shortcut. They may not have an official road, but if they continue to use it with the property owner's permission, or at least without legal objection, a prescriptive easement may be created.
Another example might be when a homeowner allows their neighbour to use their boat dock. The neighbour has been using the boat dock for the past five years without asking permission. The neighbour may be able to obtain a prescription easement to continue to use your property for such purposes in the future.
Easements by necessity
If your property is in the way of your neighbour's access to their land, such as a public road or a walkway, easements by necessity can be granted. If your home lies behind another property with no road access, this might also happen. Due to the fact that the other party must be allowed to fully utilize their land, an easement by necessity can be implied or expressed.
How can you deal with a negative easement?
An easement, depending on the type of easement described above, remains with either the property or the person once it is established. An existing easement may not always be revoked due to a change of ownership. As new homeowners, you must abide by the provisions of the easement. You can get assistance from a local real estate attorney in your area if you want to take action on an easement.
Some easements have an expiration date; rather than contesting an unfavourable easement, you can just wait for it to expire. You could also approach the person in question to ask if they are willing to relinquish their easement rights. If that doesn't work, another option is to offer to buy their land. The easement will be unnecessary if the two properties are combined under one owner.
If you can terminate an easement, you need to record the termination with the local recorder’s office. Recording the termination will also help you if there are issues in the future.
You may have some restrictions to follow as a new homeowner in relation to an easement on your land. You'll be in a better position to decide whether to fight or accept the easement if you know what type of easement was placed on the property.
Getting ready to buy a Waterloo Region home, or sell the one you own? Let Team Pinto use our huge experience and expertise to help you. Contact the award-winning Team Pinto here, or book a free Zoom consultation to discuss your unique Waterloo Region real estate needs here.