What is it, do I need one, should I give one?
An easement is a legal right to use someone else’s property for a specific purpose. A properly prepared easement will include terms of use that describe who is permitted to access the property, and for what purpose. For example, some easements are only for access or travelling through a property, while others can allow you or your contractors to install infrastructure, such as fencing or a water well, to benefit another property.
In order for an easement to be enforceable against third parties, it must be in writing and registered against the land. The easement terms must be agreed to and signed by all property owners involved. Once registered in the appropriate Land Title Office or land registry, the easement will “run with the land”. This means that the registered easement continues as part of the property, even if the property is later sold and purchased by new owners.
An easement can cover an entire property, or be limited to a designated area. In order to restrict an easement to a specific area, a survey must be obtained from a professional surveyor. The surveyor will produce a map of the easement, which is registered at the same time as the easement terms. Without a survey, an easement cannot be restricted to a specific area of the property – it will instead be a blanket easement covering the entire property. If you are being asked to grant an easement on your property it is certainly to your benefit to have a survey completed, so that it is clear which portion of your property is included in the easement and which parts are excluded.
Some common situations where an easement may be useful are:
- If you’re buying a property and in order to access it, you need to travel through your neighbor’s property (a shared driveway, for instance). In this case, an easement is required to secure your legal right to do so. Even if your neighbor agrees initially, they could later sell their property and the new owner could make the access conditional, or could deny you access entirely. Without an easement, your property could be completely landlocked and inaccessible. An easement should be negotiated as part of your purchase contract;
- If you own an existing property and believe an easement is required this can be negotiated and registered at any time, so long as all affected landowners agree. Even if you have an “unofficial easement” it is always best to register the easement to secure your rights while everyone is in agreement;
- If you share a water well or water line with your neighbors, an easement will be needed in order to access and maintain that infrastructure. The easement terms should list all of the neighboring properties that are permitted to draw water, and should specify how costs for installation and maintenance should be divided; and
- Service providers such as Telus, BC Hydro, and Fortis will commonly require easements in residential areas to maintain their infrastructure. This allows their agents to access your property to do their work. If you are building a new house or making major changes to your property, you need to consider any existing easement areas when developing the property, as any improvements to the land cannot obstruct existing easements. This can even, for example, impede where you want to install a garden, retaining wall or fence.