An easement is a right for one property owner to use another’s land without permission. This article will briefly discuss some different types of easements before explaining the legal test for establishing a prescriptive easement in Ontario.
Disclaimer: This blog is for informational purposes only and does not constitute legal advice. You should not act or rely on any information in this blog without consulting a qualified attorney.
Express Grant
Perhaps the simplest way to establish an easement is through an express grant. A property owner can grant another the right to use their property for a specific purpose. The grant is created through written agreement and registered on title.
A common express grant is a right-of-way where a property owner sells another the right to cross over their land. The “nature and extent of a right-of-way depends on the proper construction of the language of the instrument creating it” (Canadian Pacific Ltd. v. Paul, 1988 CanLII 104 (SCC), [1988] 2 S.C.R. 654, at p. 671).
Express Reservation
An express reservation is similar to an express grant except, in this case, the vendor is the one seeking the easement. The vendor sells a parcel to the purchaser with a reservation to use the purchaser’s land for a specific purpose. The reservation must comply with the requirements for the transfer of an interest in land.
Contact a Real Estate lawyer at Cunningham Swan if you have any questions about creating an express grant or reservation.
Implied Grant and Easement of Necessity
There are a number of different ways of implying the existence of an easement when one has not been expressly created. Perhaps the most common is an easement of necessity. An easement is necessary if a party must use the land of a property owner to access their own property. The doctrine of easement of necessity is supported by public policy: land should not be rendered useless or inaccessible.
The applicant does not need to show absolute or strict necessity, but rather practical necessity. The applicant must show that, for all practical purposes, the applicant needs the easement to access their property. If the applicant’s parcel is completely landlocked, there is likely a very strong case for an easement of necessity. However, in many cases, the facts are more nuanced. For instance, if a property has water access, but water access is not as of right or is not always available, an easement of necessity may still be recognized.
Prescriptive Easement
Using the doctrine of prescriptive easements, Courts can recognize the existence of an easement that has not been expressed or implied. However, establishing a prescriptive easement can be difficult.
The Four Requirements
First, an Applicant seeking a prescriptive easement must establish the four general requirements for the creation of easements:
- There must be a dominant tenement (who enjoys the benefit of the easement) and a servient tenement (who is burdened);
- the easement must accommodate the dominant tenement;
- the dominant and servient tenements cannot both be owned and occupied by the same person; and
- the easement must be capable of forming the subject matter of a grant.
Put differently, there must be a property owner seeking to benefit from the easement (the dominant tenement) and a different property owner whose land is accessed.
The easement must benefit the dominant tenement. It must improve and enhance the enjoyment of their property in a real way. The easement cannot merely be for personal convenience but also benefit successors in title (or future owners).
To form the subject matter for the grant, the easement must (a) not be too vague, (b) not substantially deprive the owner of proprietorship (or be too broad), and (c) not be of mere recreation and amusement. Rather, it must have utility. However, a right of way that offers a more direct route to a place that is used for recreation, such as a beach, has utility.
Use That is Continuous, Uninterrupted, Open, Peaceful and Without Permission
An applicant must show use and enjoyment of the alleged easement which was continuous, uninterrupted, open, peaceful and without permission (Kaminskas v. Storm, 2009 ONCA 318 (CanLII) at para 23).
What constitutes “continuous” use depends on the property in question. Use of an alleged right of way over a cottage property may be considered “continuous” if the route is used seasonally (for instance, during the weekends and summer months). “Continuous” use of a driveway may require more consistent usage. It is a fact-based analysis.
To be “uninterrupted” there must not be notable gaps in the use of the property. Continuous use for a few years at a time with significant breaks in between will not be sufficient.
“Open” use is not secretive. It is visible and notorious. Open use of a property can be identified by an ordinary and diligent property owner (servient tenement).
Last, the alleged easement must be used peacefully yet without permission. Permission cannot be provided by the property owner whose land is being accessed (the servient tenement) nor can permission be denied. The moment there is a dispute between the parties about the use of the alleged easement, the peace has been broken and permission has been denied.
Prescriptive Easements Under Statute and Lost Modern Grant
The continued, uninterrupted, open, peaceful, and permissionless use of the property must occur over a certain period. Under the common law doctrine of Lost Modern Grant, this period is any 20 consecutive years before the subject property’s conversion from the land registry system to Land Titles. Here is a blog by Bob Tchegus of Cunningham Swan explaining this conversion: Registry Act vs. Land Titles Act – A legal primer.
An application for a prescriptive easement can also be brought under Sections 31 and 32 of the Real Property Limitations Act, RSO 1990, c L.15. An applicant can bring a claim under statute if they have enjoyed continuous, uninterrupted, open, peaceful, and permissionless use of the alleged easement for 20 years immediately prior it bringing the claim, or, alternatively, for 40 years immediately prior to bringing the claim if they have not received written permission or refusal.
Under section 51(1) of the Land Titles Act, R.S.O. 1990, c. L.5, despite any provision in the Real Property Limitations Act, no interest in land can be acquired by prescription after it is registered to Land Titles. Therefore, after a parcel is registered, an application can no longer be brought under statute (since the alleged easement has not been used as a right for at least 20-40 years directly before bringing the claim) and the applicant must rely on the doctrine of Lost Modern Grant to identify an appropriate 20 year period that the alleged easement was used before the conversion.
If you would like to bring or oppose an application for prescriptive easement, contact Cunningham Swan. The lawyers in our litigation team can assess your case, provide you with our honest opinion, and make a concrete plan to advance your interests. Contact us today at