Easing into easements

LAST WEEK, we looked at the terms private road, reserved road and right of way. This week, we continue our look at selected terms and I will provide details on what is an ‘easement’.

Do you know if your title includes an easement or rightof-way? If so, it can limit the ability for you to conduct work on the land owned by you. Rights-of-way and easements are both examples of property rights that allow others the use of your property. In order to remove them from your title, both parties need to agree.

WHAT IS AN EASEMENT?

An easement is an agreedupon use of land by a party other than the landowner. This agreement allows access to land for things like natural resources, development of necessary utility pipelines, or construction and maintenance.

Easements can be beneficial, depending on their purpose. It is important to educate yourself on any easements on the property you are interested to ensure it will benefit you.

An easement is a right granted by an owner of land to the owner of another parcel of land for the benefit of the dominant tenement to enter and use the land for a non-exclusive purpose.

There are four essential conditions required to be satisfied in order to create an easement.

There must be a dominant tenement and a servient tenement. (a) A dominant tenement is lands for the benefit of which an easement exists. (b) A servient tenement is lands which are subject to the burden of an easement existing for another parcel of land.

A dominant tenement and servient tenement should not be owned by the same person, that is, there must be separate ownership.

If two parcels of land are owned by the same person, then an easement cannot be granted over his/her own lands.

However, where a person owns separate parcels of lands in two capacities, for example, in capacity as executor and the other as beneficial owner, an easement may be granted as tenements are not owned by the same person with the same rights.

An easement must benefit the lands which are described as the dominant tenement, that is, it must have a natural connection with the estate being for its benefit. A right that benefits the registered owner is not an easement.

The right, the subject of the easement, must be capable of forming the subject matter of a grant.

ADDITIONAL ELEMENTS

The lands need not be contiguous (adjoining each other).

All owners of the both lands must be a party to the easement. There must be a capable grantor (capacity to make the grant) and grantee (capacity to acquire the grant).

The easement must specify the land benefiting and burdened by the easement and any conditions affecting the easement.

If an easement is granted, or benefiting a life tenant or lessee the interest cannot extend beyond the interest of the grantor or the grantee. (It expires on the determination of the life estate or leasehold).

An easement may be created in a transfer or lease granting such an easement. Section 93 of the Registration of Titles Act enables the grant of a right of way in a transfer by reference to the Third Schedule.

The rights created in an easement must be reasonable definite. If uncertain or vague it might not constitute an easement.

An easement runs with the land which enjoys the benefit, therefore, when the land is transferred the new owner acquires the benefit. Such easement is a legal estate in the land, unlike a licence which is purely equitable.

EASEMENTS BY PRESCRIPTION

This is an easement that is created and not given. A prescriptive easement is an easement upon another person’s land acquired by continued use without permission of the owner for a legally defined period.

The defined period could be determined to be as short as seven years, as determined by the limitation of actions act or 12 years as determined by adverse possession or the time prescribed under the Prescription Act (Section 9).

In order to prevent this, you will need to give permission for the expressed use so that the prescribed period of time of use without permission is not met or you may have an easement created over your property that you did not want.

Keep sending your questions and comments and let’s continue to explore A Matter of Land. Until next time, traverse well.

■ Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at craig_r_francis@yahoo.com or Precision Surveying Services