A right enjoyed by one tenement over
another tenement, for example, one land
owner with a right over another land owner,
usually granted for a special purpose rather
than for the general use and occupation of
the land. An easement is an interest that
runs with the land.
Once granted, an easement attaches to
the land and binds subsequent owners. An
easement must have both a dominant tenement
(land that benefits from the easement), and
a servient tenement (land that serves or is
subject to the easement). Separate ownership
of the dominant and servient tenements must
exist and the right must confer a benefit on
the dominant tenement. The two tenements
need not be adjoining.
Agreements relating to easements are
usually registered against titles to both
properties. However, such is not always the
case, for example, when statutory easements
are involved (see subsequent details). The
title to an adjacent property may have to be
searched before determining if a particular
property benefits from a registered easement
over another’s land. These agreements may be
registered as instruments on their own and
appear on the title under that particular
name, or they may be registered by way of a
caveat (a warning or notice on title), in
some provincial jurisdictions.
Easements can be created by express
grant, prescription, implication, or
statute.
Express Grant:
The easement can be created whenever an
owner decides to grant a privilege, (a
right-of-way or easement), in favour of the
adjoining owner.
Prescription:
An individual can obtain a right-of-way or
easement by adverse possession, also known
as by prescription or squatters’ rights , in
certain circumstances if the usage of the
right-of-way was open and continuous for a
specified period of time.
Implication:
Best described by using an example. Assume
that a sale of land adjoining the seller’s
land causes a parcel of land to be
landlocked, the law implies that a purchaser
would have an easement over the seller’s
remaining land by way of necessity. Another
example would involve mutual support. A
shared docking area by two cottagers would
naturally preclude the ability of one party
to destroy his/her portion of the docking
facility to the detriment of the other’s
structure.
Statute:
Easements created by statute involve groups
such as public utilities and telephone
companies who gain the right to string
wires, install equipment, and maintain
services by virtue of various provincial
statutes. A statutory easement is created by
the authority of the statute and does not
require a dominant tenement.
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