Lily Dittschlag & Dennis Dittschlag
KNOW YOUR BOUNDARIES - PART 2 - EASEMENTS
Updated: Sep 5, 2020
When you're house hunting, it's easy to get carried away with the perfectly staged interior and the luxurious feel as you pass through each room. Just when you think you found your dream house and start envisioning yourself living in your new castle, your real estate lawyer tells you there's an easement on the property. At first you might not be exactly sure what this means and may not even think it's a big deal. But easements can greatly restrict your use of the property. As we mentioned in our last blog, it's always good to know your property rights! And easement rights are no exception.
What is an easement?
An easement is the right for someone else to use your land.
The use must serve a specific purpose and be used for that purpose only. For example, a hydro easement in your backyard would give a utility company the right to use your backyard to access cables. If the cables are underground, this means they have the right to dig up your lawn. This could affect where you can install a pool, patio or deck in your backyard.
Another example is a right-of-way easement. This gives your neighbour the right to drive or walk through your driveway to access their garage in the backyard. A right-of-way easement is what we have on our Passive House property, so this is the type of easement we will focus on in this article.
How to find out if there's an easement on a property?
You can think of easements as giving and receiving benefits. In real estate terms, the receiver of the benefits is known as the dominant tenement. This is the party that gets the usage right to your property from the easement. In the example above, your neighbour is the dominant tenement because he benefits by being able to drive over your land. In his legal land description, the letters T/W, which stands for "together with" would be shown to indicate that he's the dominant tenement.
The giver is known as the servient tenement. In our example this means you have to accommodate part of your land for your neighbour to use. In your legal land description, the letters S/T, which stands for "subject to" would be shown to indicate that you are the servient tenement.
(As we go through our journey of building a home and learning about different things, we have found that every topic comes with its own special terminology, and property rights are no exception...)
But wait, don't despair!
In older Toronto neighbourhoods such as Mimico, right-of-ways exist because they were created decades ago when rear parking garages were common. Most of these right-of-ways are tight and can fit exactly exactly one car width (at least back in the days before big SUVs). This is often called a "mutual driveway", meaning that half the driveway belongs to you and half belongs to the adjoining neighbour. In these situations, there is no winner and loser. You are the dominant tenement over your neighbour's half of the driveway, and servient tenement to your half of the driveway. This would be indicated on the legal land description with the combination of "S/T" and "T/W".
If you want to learn more about deciphering legal land descriptions, see our last blog! A great tool to find out if a property in Ontario has an easement based on legal land descriptions, is found here. By typing in your address, you'll find out in a matter of seconds if there are any restrictions on your land.
Right-of-way easement (what you can and can't do)
Right-of-way easements such as mutual driveways must be free from any obstructions, meaning that the path is always clear for a car to drive through at any time. Below are three scenarios that can happen.
This is the ideal scenario. The mutual driveway is clear and free from any obstacles such as garbage bins and debris that could prevent a car from passing.
This is in violation of easement rights. No permanent or long term parking on mutual driveways is allowed. The blue car seen in this picture is obstructing the otherwise clear path.
This is in violation of easement rights. But if both you and your neighbour agree to build a fence, it might be okay for the time being. But keep in mind, that if your neighbour decides to sell his house, the new owners might ask that the fence be removed because easements run with the land, not with the owner.
Advantages of a right-of-way easement
In a dense city like Toronto, where overnight street parking is off-limits, having a right-of-way easement already registered on the property can be a good thing. For us, this means the option to build a carport in the backyard for additional parking in future is a real possibility. New houses are often built maximizing every square foot of space, so it is rare for developers to build houses with at least one car width between them unless required by law.
Disadvantages of a right-of-way easement
Mutual driveways can be a cause of contention between neighbours. Since both parties are responsible for the right-of-way, there can be disagreements when it comes to who shovels the snow in the winter. There is no written obligation for snow removal, but each owner cannot damage the other owner's property in doing so. If you wish to shovel the snow, you cannot pile snow on your neighbour's side and vice versa. The municipal by-law that requires owners to remove snow from sidewalks do not apply to mutual driveways.
Another area of contention is the repair of the mutual driveway. It can be tricky when it comes to who pays for what, when one owner feels the need for repairs when the other doesn't. But somehow both parties have to come to a consensus on how to maintain the land.
How to get rid of an easement?
After weighing the pros and cons of the easement, we wondered about the options to terminate an easement. Two possible ways we considered are 1) merge and 2) release.
An easement can cease to exist if both the dominant and servient tenements merge. This means buying the neighbouring property if and when it's for sale. But this is not a likely possibility since it's outside our budget right now and properties in Mimico are in high demand getting snatched up almost instantly for way over the asking price.
This is when the dominant tenement may release the servient tenement by removing the easement from the title. For us, since we are the dominant tenement over the neighbour's half of the driveway and servient to our half of the driveway and vice versa. Both parties have to seek legal counsel to release each other from the title. Unfortunately, initiating this conversation with the owners seem rather challenging because the neighbouring house is unoccupied and intended to be rented out.
But a good start is to find out the names of the owners. This can be done at Toronto City Hall where they have designated computers where you can look up property information for any address in Toronto and find out basic information about the property including the owner's name. It's not as convenient as an online tool, but it's a good starting point.
Easements simplified: Be cautious but don't be afraid...
Easements may not be as exciting as those shiny new kitchen appliances, but it's important to understand your property rights and having the right expectations for your new home moving forward. The right-of-way easement such as a mutual driveway is quite common in Toronto, so understanding what you can and can't do, pros and cons, and termination options can help you make the decision that is right for you.
Ultimately, easements are nothing to be afraid of, you just need to know how to deal with them. Since it is such a diverse topic, we recommend that you seek legal advice from experts in real estate law to get you on the right track.
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