When the topic of property rights gets brought up, most people think of ownership and the ability to possess, use, and enjoy land. But the law also recognizes a category of non-possessory interests, where one party has limited rights to use another’s land without owning it. The most common non-possessory rights are called easements.
What Is an Easement?
An easement is a legal right attached to land that allows someone to use another person’s property for a specific purpose. Many easements are commonly referred to as “rights of way”, with a common example often being an easement over your neighbour’s property to access your own.
Easements come in two forms:
- Easements appurtenant: benefits a specific parcel of land (the dominant tenement) and burden another parcel (the servient tenement).
- Easements in gross: these benefit a person rather than a parcel of land. They exist without a dominant tenement and are often in favour of public utility companies or governmental authorities.
Easements are officially registered on title to the servient land, serving as a notice to future buyers. Conducting a title search can reveal registered easements, which allow a prospective buyer to strategically consider how the property can be used or developed.
Positive vs. Negative Easements
Easements may vary in character depending on whether they are classified as positive or negative.
Positive easements entitle the holder to do something on another’s land, such as crossing it, running utilities beneath it, or discharging water (by way of a drainage pipe or swale, for example). Common examples include a right of way, a right to install cables, or a right to park vehicles.
Negative easements prevent the servient owner from using their land in a certain way, for instance, blocking a neighbour’s light or airflow. However, courts have been reluctant to recognize new negative easements, as they unduly restrict development. Rights like protection from weather, a view, or television interference are not usually recognized by courts.
Easements can affect property value depending on their type and scope. A minor driveway or utility easement may have little impact, while a conservation easement can significantly restrict use and reduce value.
How Easements Are Created
There are three primary methods of creating an easement:
1. Express Grant or Reservation
These easements are created by agreement between landowners, usually when property is subdivided. A grant occurs when the owner of a parcel of land gives an easement to someone else, whether it be positive or negative. By contrast, a reservation arises where the vendor, upon conveying property, retains an easement over the lands being transferred. This commonly occurs where an owner holds two adjoining lands and sells one while expressly reserving an easement over the conveyed parcel for the benefit of the land retained.
It is important to note that, practically speaking, an easement created by an express grant may be void against subsequent purchasers if the instrument creating the easement is not registered on title. There have been situations where the courts have recognized an “equitable easement” even when it was not formally registered on title, if it is necessary and fundamental to how the property functions.
2. Implied Easements
Even without an express agreement, courts may infer an easement based on necessity or intention.
The Doctrine of Implied Grant, originating from Wheeldon v. Burrows, provides that when an owner transfers part of their land, any continuous and apparent uses that are necessary for the reasonable enjoyment of the transferred portion will pass with it, even if they are not expressly written into the deed. This doctrine is reflected in section 15 of Ontario’s Conveyancing and Law of Property Act, which states that when land is conveyed, everything that naturally goes with the land, including easements, is transferred to the new owner (unless the deed specifically says otherwise).
For example, suppose a landowner holds a large rural parcel with a single access point to a public road located at the rear of the property. The owner then sells the front portion, which is fenced in and has no independent connection to the public roadway. The purchaser of the front parcel would be left without any legal means of access and, in practical terms, would be landlocked. In that situation, the court may recognize an easement of necessity over the conveyed land if certain criteria are met.
Courts will also recognize an implied easement where both parties clearly intended the land to be used in a particular way, even if not expressed in land transfer documents.
An implied easement “runs with the land”, meaning that future buyers will be bound by it, even if it was not written in the deed and had no prior knowledge of it.
3. Prescriptive Easements
Sometimes, long-term use can evolve into a legal right. A prescriptive easement arises through continuous, open, and peaceable use without permission for at least 20 years. However, this doctrine has been largely abolished in Ontario’s Land Titles system. Claims for prescriptive easements will be recognized only for rights established before land registration, under the Registry Act. The shift makes clear that neighbourly tolerance alone should not harden into binding legal rights.
Extinguishing an Easement
Easements aren’t necessarily forever. They can end through:
- Expiration (if the grant is time-limited);
- Condition subsequent or determinable limitation;
- Mutual release or agreement;
- Abandonment, requiring clear intent and long inaction; or
- Unity of ownership (doctrine of merger).
Key Takeaways
Easements can arise in a variety of ways and can significantly affect how a property is accessed, used, developed, and valued.
Before buying, selling, or subdividing land, it’s critical to understand what rights exist and how they may affect your property. If you have questions about an easement on your current or prospective property, consult a real estate lawyer to safeguard your interests before a minor issue becomes a costly dispute.
Jaimin Panesar is a real estate lawyer who joined Woitzik Polsinelli LLP in 2025. He maintains a broad practice in residential real estate transactions. Jaimin can be reached at jaimin@durhamlawyer.ca and/or 289-220-3281.
This blog was co-authored by articling student Mariem Naem.