Check your easements before buying or building property

Owning your home is not a free pass to do what you want with the land around it. 

That’s why a key part of the searches lawyers conduct before a real estate deal goes through is  checking what easements are registered on title.  

In basic terms, an easement grants someone else the right to use your property. For most  Ontarians, the only ones they have to worry about are utility easements in favour of hydro, gas,  water and other providers who may need access to infrastructure below the ground or  overhead.  

Other easements – commonly found in older parts of the city – may guarantee a neighbour’s  use of a shared driveway or another piece of your property that allows them access to their  yard.  

Although the easement holder doesn’t own any of the land at issue, their access rights may affect what the actual owner can do with that part of the property, as an Oakville couple recently learned to their cost. 

Ontario’s Court of Appeal recently ordered the homeowners to remove the pool they had  constructed over the top of an easement registered almost five decades earlier in favour of the  town and Oakville Hydro.  

According to the decision, the easement in question runs 10 feet in width along one edge of the  property, allowing the municipality and the hydro company to construct and maintain pipes  and sewers beneath. While owners are allowed to “use the surface of the land,” the easement  bars them from planting trees or erecting “any building or structure” on it.  

Although the couple were aware of the easement when they bought the property in 2012, they  did not think it was active and in 2014, they built a pool over the top, without first obtaining a  permit from the town.  

They argued in court that the pool should stay because it did not interfere with the equipment below the ground, while the town had previously allowed several structures to be erected  within the easement. However, Ontario’s Court of Appeal upheld an earlier decision ordering  the couple to pay for the removal of the pool and any damage to the easement, in addition to  $40,000 in legal costs.  

Whether you’re buying or selling your home, it’s important that you know exactly what  easements are on title, and where exactly they are on the property. An experienced real estate  lawyer can guide you through the process and help you understand what your rights are.  

Disclaimer: The content on this web site is provided for general information purposes only and  does not constitute legal or other professional advice or an opinion of any kind. Users of this  web site are advised to seek specific legal advice by contacting members of Laredo Law (or their  own legal counsel) regarding any specific legal issues.

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