What is an Easement?

Easements are one of those words that many people know but have little understanding of what exactly it means. A person may generally know what an easement is, but when asked how one is created or destroyed, they are often at a loss. This article will explain the basic components of an easement, different kinds of easements, and examples of easements.

Easements in their most basic form create a right for one party to use someone else's land for a specific purpose, even though they do not own the land. The party entitled to the easement has a right to use the land for that easement, meaning the owner cannot interfere once an easement is created. When properly created, an easement is attached to the land itself, so the selling of the land does not eliminate the easement.

An easement can be registered at Land Titles, but it is not required. An unregistered easement is still effective in Manitoba, as stated in section 58 of The Real Property Act. For an easement to exist, a dominant and servient tenement must own physically connected land. Typically, the dominant tenement enters into a written agreement with the servient tenement to be granted access to their land. The dominant tenement must be granted access to the land for a specific purpose, and the easement can only be used for that specific purpose. The easement's purpose must be for the betterment of the dominant tenement's land, not for the dominant tenant themselves.

An easement runs with the land, and so long as there still exists a dominant and servient tenement and the original purpose of the easement, the easement still exists. Therefore, if the dominant or servient tenement purchases the other party's land, the easement is eliminated as there no longer exists a need for the easement.

Typically, easements are created through mutual written agreements. These agreements can be filed at the local Land Titles office so potential buyers can see the easement's existence. There does exist an easement that does not need the consent of both owners and is not filed at a Land Titles office. These are called prescriptive easements and are unique among easements. Prescriptive easements are created when a dominant tenement has used the servient tenements land in a specific way for 20 years and meets the following parameters:

1. The use of the land was known to the landowner and not done in secret;

2. There was no agreement for the use; and

3. The use must be uninterrupted for 20 years, and any interruptions no matter how small, will prevent the creation of a prescriptive easement.

One of the more common examples of a prescriptive easement is a farmer using another farmer's field to access their field. If the Farmer used the other Farmer's field to access theirs for 20 uninterrupted years, a prescriptive easement is created, and that access to the field becomes a right. If a party wishes to prevent the creation of the prescriptive easement, they can either specifically give the party permission to use the land or prevent their access for a short period of time.

Easements are often created so a party can access their own land through someone else's land. For example, if a road is created on the back of a servient tenement's property so the dominant tenement can access their backyard. As stated earlier, the easement only exists so long as the need for the easement exists. If a separate road allowed the dominant tenement access to their backyard, the easement would end.

One of the most common and unique easements is statutory easements. These are easements that allow government agencies to create easements without owning adjacent land and can be imposed by the government. The most common of these are those created by Manitoba Hydro, allowing Manitoba Hydro access to the servient tenements property to access their hydro lines. The kinds of statutory easements that can be created can be found in section 111(3) of The Real Property Act.

Easements can be useful tools for individuals who wish to access their land through someone else's land. However, because easements do not need to be registered at Land Titles, there is a danger for potential buyers that an easement could exist without their knowledge. Therefore, it is important to speak to legal counsel whenever purchasing land.

If you are purchasing land, our lawyers can help you determine if an easement exists on the property. Contact our office and our lawyers will be happy to assist you.