An easement is a legal right that allows one property owner to use a portion of another person's land for a specific purpose, such as accessing a road or running utility lines. In Ontario, easements are registered on title, run with the land, and bind all future owners regardless of whether they were aware the easement existed at the time of purchase.
The property that benefits from the easement is called the 'dominant tenement,' and the property burdened by it is the 'servient tenement.' Easements grant a right of use, not ownership. The servient owner still owns the affected land but cannot interfere with the easement holder's permitted use.
There are several ways easements come into existence. An express easement is created through a written agreement between property owners and registered with Ontario's Land Registry Office. An easement of necessity may arise when land is severed and one parcel is left without access to a public road. Prescriptive easements can be established through continuous, open, and uninterrupted use for a statutory period, though under the Land Titles Act, prescriptive rights generally cannot be acquired after a property is registered in the Land Titles system.
For buyers, easements matter because they can restrict what you do with your property. A utility easement might prevent you from building a structure or installing a pool in a particular area. Shared driveway easements, common in older Toronto neighbourhoods, create ongoing obligations between neighbours.
The standard OREA Agreement of Purchase and Sale addresses easements in its title clause. Buyers are generally required to accept minor easements for utilities and public services. However, if a title search reveals an easement that materially affects the property's use or value, the buyer's lawyer can raise a title requisition before closing. If the seller cannot resolve the issue, the buyer may be entitled to walk away and receive their deposit back.
Your real estate lawyer will conduct a title search through Ontario's electronic land registration system, Teraview, to identify any registered easements before you close. Reviewing an up-to-date survey is also valuable, as it can show the physical location and width of easement corridors that a title search alone may not make visually clear.
