There are basically three kinds of non-express easements created by operation of law. The first is “prescriptive easements", the second is “implied easements” and the third is “easements by estoppel”.
In Ontario there are two ways a prescriptive easement can be created. The first is by operation of the Real Property Limitations Act and the second is by the operation of the doctrine of modern lost grant. The test for creating prescriptive easements under the Real Property Limitations Act and the doctrine of modern lost grant is identical. The test is exactly the same. It is actual use for 20 years combined with acquiescence by the servient owner. The use cannot be secret or hidden, it cannot be by force, it cannot be by permission and it cannot be interrupted. Once established it is as good an easement as an express easement and cannot be lost by non-use but only by release, implied release or abandonment.
The only real difference between the a prescriptive easement under the Real Property Limitations Act and a prescriptive easement under the doctrine of lost grant is the 20 year period runs backward from the date the claim (statement of claim or application to establish the right) is filed for prescriptive easements established under the Real Property Limitations Act and the doctrine of lost grant runs forward for any 20 year period. As such, if there is a break in use at any time during the twenty years before the court proceeding is instituted you cannot use the Real Property Limitations Act. But if you can establish use for any 20 year period, then it does not matter if there has been break in use thereafter.
The tests for prescriptive easements are similar to the test for establishing adverse possession. In adverse possession exclusive and open use of your neighbour’s land for 10 years gives the trespasser rights akin to ownership. These rights arise by operation of the Real Property Limitations Act as well which prevents the real owner from obtaining possession of his property after exclusive use for 10 years by the trespasser.
One difference between adverse possession and prescription is that in prescription, rights are acquired (an easement) but the servient owner continues to own the fee simple subject to the easement but in adverse possession, the true owner’s fee simple rights are lost forever.
The fundamental concepts in easement law have not changed in the last 150 years and no legislative changes have occurred to alter the fundamental concepts. The law is in many ways esoteric, complex, steeped in feudal jargon and very fact driven. While the principles are generally settled, the application to particular facts is unpredictable and often surprising. However, unlike some areas of law, justice often prevails by twisting or massaging the facts to fit the fundamental principles. A solid knowledge of easement law is essential in a conveyancing practice. The following problems occur with surprising regularity
(a) the travelled “road” leading
to the property from the public highway doesn’t follow the deeded
(b) the underlying servient lands do not reflect the easement;
(c) there is no deeded access only use over a lengthy period of time.
(d) the original owners of adjoining property have an understanding arising out of friendship or family relationships which is disputed by subsequent owners;
(e) wells are shared without documentation;
(f) water pipes run over adjoining property without documentation;
(g) the existence of woods or rugged terrain makes the demarcation of property lines unclear;
(h) cars are parked from time to time on deeded easements or even adjoining property;
(i) seasonal uses may be carried on without knowledge of the servient owner;
(j) absentee ownership or occasional use leads to misunderstandings when the use becomes permanent; and
(k) licenses are miscast as easements or easements miscast at licenses.
2. Kinds of Easements Created by Courts
There are many different kinds of easements that the Courts will recognize in the absence of an express grant. Basically, if the parties could have created the easement by express grant, the Court will recognize the same kind of easements through implication, prescription or estoppel. The following are some of the easements that the Courts have recognized absent an express grant:
(a) access easements, rights of way,
(b) access easements to the water;
(c) parking easements;
(d) easements for waterlines or pipes;
(d) hydro or utility easements;
(e) easements for wells and septic systems;
(f) maintenance easements;
(g) easements for storm or sanitary sewers.
(h) support easements;
(i) telecommunications easements:
(j) recreational easements (i.e. sharing or access to recreational facilities);
(k) fire escape easements; and
(l) facility repair easements.
The categories or kinds of easements that can be created by operation of law are open to meet the changes in society and the needs of landowners. There appears to be no restriction on the kinds of easements that the Courts can create. This is especially true where creative easements are necessary to make projects function properly. Unfortunately, the criteria for determining if a use is an easement or not (as opposed to the kinds of easements once the criteria are met) is fixed and cannot be expanded.
It is fair to say that express easements being creatures of contract can be far more sophisticated and complex than easements created by the Courts. While the Courts can create any kind of easements, it cannot create the complex relationships between dominant landowner and servient landowner that express easements can create. Nor can the law deal with complex issues relating to repair, relocation, maintenance and the termination of easements that can be dealt with in an express grant.
Easements created by the Courts
must still contain the four specific characteristics that make a right
to use land an easement. If the right does not fall squarely within
these four characteristics of an easement, then it is not an easement
and does not get the fundamental benefit that makes easements so
valuable: the right to bind the land without privity of contract. It
should be noted that there is some disagreement in the cases and in the
legal texts as to whether in fact the categories of easements are closed
or not. While new forms of property interests cannot be created, it is
generally accepted that so long as the four characteristics of an
easement exist, the categories or kinds of easements are open to the
3. Qualities of an Easements Created by the Courts
The English Court of Appeal decision in Re Ellenborough Park sets out the four essential elements of an easement whether express or created by the Courts. An easement, whether by implication, prescription or estoppel, must meet each of these criteria. The tests identified in Re Ellenborough Park are:
1. There must be a separate dominant and a servient tenement;
2. The right claimed must accommodate the dominant tenement, that is, be connected with its enjoyment and for its benefit;
3. The dominant and servient owners must be different persons; and
4. The right claimed must be capable of forming the subject matter of a grant.
If the right claimed does not contain these four
elements, it is not an easement but something less than an interest in
land that does not bind subsequent owners of the servient tenement. It
will likely be a license terminable “with” or “without notice”.
Alternatively, if the use granted to the dominant owner is exclusive and
the servient owner is excluded, it could be either a lease or even a
grant of the fee simple.
4. What Is a Right-of- Way and Is It Different From Other Easements?
A right of way is merely an easement for access to the property. As such, it complies with all of the rules and restrictions discussed regarding easements generally. Rights of way however seem to have a special place in the caselaw arising out of the fact that access to land is of such fundamental importance. As such, a great deal of the caselaw dealing with easements by implication, necessity or prescription involve rights of way. In addition, there is a great deal of caselaw dealing with ancillary rights related to rights of way. Notwithstanding that the following matters relate specifically to rights of way, it is the writer’s position that these factors should also apply to other easements in the appropriate circumstances.
1. The obligation to construct and repair a right of way falls on the owner of the dominant tenement who receives the benefit of the right of way.
2. A right of way includes such ancillary rights as are necessary to enjoy the right of way. For instance, such reasonable access to a right of way must be provided in order to construct the roadway and where necessary, the right to excavate the right of way to a reasonable grade is implied.
3. The servient tenant may maintain gates across the right of way to preclude use by others provided that the owner of the dominant tenement has full use of the right of way. This is generally satisfied by providing a set of keys to the owner of the dominant tenement.
4. On a severance of the dominant tenement, the benefiting rights of way over the servient tenement is attached and benefits each of the severed lots. This general rule, however, may be limited where the benefit of the right of way is intended to benefit some but not all parts of the dominant tenement.
5. The owner of the dominant tenement may increase the use or burden of a right of way provided it is not a radical change to the character or the use of the right of way. However, this rule will only apply once the prescription period has run or the equitable easement has been established. This means for instance, that a right of way for pedestrian traffic may not be used for vehicular traffic. However, a right of way benefiting a single family home may be increased to benefit others using the property although at some point, if access is provided generally to the public or for commercial purposes, the use of the right of way may go beyond what is considered reasonable. The Courts are also more likely to restrict the use of a prescriptive easement or an equitable easement to the actual use which established the right and not permit the same increase in use that might be permitted for an express grant.
6. Where a right of way is created to benefit a residential property, it may not be permissible to tear down the residential building, build a commercial establishment and use the right of way for commercial purposes.
7. The law has taken the position that the right of way benefits the dominant tenement only and therefore cannot be used by any other person other than the owner of the dominant tenement even where the owner of the dominant tenement has granted a right of way over its own property to an adjoining landowner.
8. Where the owner of the lands (“Parcel A”) adjoining the dominant tenement leased part of the dominant tenement for the purposes of parking motor vehicles and constructing a garage, to benefit the use of Parcel A, the Ontario Court in Jengle v. Keetch concluded that the use of the dominant tenement was a bona fide use and was not really intended as a cross-over of the dominant tenement to get to Parcel A and therefore a right of way benefitting the dominant tenement could be properly granted by the tenant of the dominant tenement.
9. As a general rule, the holder of the dominant tenement has the right to improve the easement in order to utilize it. This includes the implied right to enter on the servient tenement to do so.
10. The owner of the servient tenement has the right to do anything on the right of way that the servient tenement owner wishes to do provided it does not interfere with the use of the right of way by the dominant tenement landowner. For instance, the servient tenement landowner cannot construct a building on a right of way which has the effect of preventing the use of the right of way. Even if the use by the servient landowner did not interfere with the use of the right of way if it prevented the right of way being repaired or maintained, the use by the servient landowner would be prohibited.
11. The dominant tenement landowner cannot require the servient tenement landowner to repair an easement. However, if the use by the servient landowner effectively puts the right of way into disrepair, the dominant tenement landowner would be entitled to demand that the easement be repaired.
12. The dominant tenement owner cannot force the servient tenement owner to pay for maintenance of the right of way. The obligation to maintain and repair is solely that of the dominant tenement landowner. Interestingly, the failure of the servient tenement landowner to pay realty taxes cannot give rise to a claim by the dominant tenement landowner even where the failure to pay realty taxes could result in the property being sold free of the easement. In these circumstances, the owner of the dominant tenement has the right to pay the realty taxes and charge them back to the servient tenement landowner or maintain a first charge on the servient lands in the place of the City. The problem of course is in obtaining the information as to the status of the realty taxes on the servient tenement.
13. As a general rule, the dominant tenement landowner cannot block a right of way for his benefit where the right of way is for passage or egress or ingress. For instance, motor vehicles cannot be parked in the right of way. The servient tenement owner cannot be precluded from using the servient tenement. Temporary parking, however, may be permissible.
14. The owner of the dominant tenement cannot require the servient tenement landowner to provide an alternate easement where the easement is blocked or flooded unless caused by the activity of the servient landowner.
15. The owner of the servient tenement does not have the right to substitute another location for the easement where the location of the easement is impractical or where the easement is a burden on the servient tenement landowner. Nor can the dominant tenement landowner require a substituted easement where the easement is impractical.
16. The responsibility for injury to a person on the easement lands falls upon the owner of the dominant tenement as the occupier or user of the easement. This rule, however, should not generally be relied upon and the owner of the servient tenement should ensure that liability insurance is available. In is likely in the event of injury to a person using the right of way that both the Dominant Owner or the Servient Owner would be the subject of a lawsuit. This issue will depend upon who the occupier is. The definition of occupier in the Occupier and Liability Act is a person who is responsible for control over the condition of the premises or the activities therein carried on or control of a person’s use of the premises notwithstanding that there is more than one occupier of the premises. The definition of premises in the Occupier and Liability Act means lands and structures and in accordance with this rule, it would apply to a right of way. The issue then is whether the dominant tenement landowner or the servient tenement landowner is the person responsible for the control of the condition of the right of way. Since the dominant tenement landowner has the obligation to repair, it would appear that the owner of the dominant tenement will be responsible for any damages to occupiers on the easement.