EASEMENTS, ENCROACHMENTS AND RIGHTS OF WAY

When purchasing real property, it is always recommended to carefully review the agreement of purchase and sale and to have an experienced real estate lawyer conduct a title search of the target property to reveal any easements, encroachments, or rights of way registered on title. Below you will find more information on easements, encroachments, and rights of way.

EASEMENTS

An easement is the legal right of an individual or entity to use another’s land. When discussing easements, the individual or entity exercising their legal right to the land is the dominant tenement, while the property owner granting the right to use the land is the servient tenement. An example of an easement would be an easement for servicing utilities held by a utility company. In Ontario, an easement can be created in several ways: through express intention, implied intention, prescription, and by statute.

ENCROACHMENTS

An encroachment refers to an object or structure that intrudes onto a person or entity’s land. An example of an encroachment would be when neighbour A builds a fence line on their property, but after a property survey, it is discovered the fence line was built 3ft onto neighbour B’s land. In this example, neighbour A will be said to have encroached onto the land of neighbour B. Typically in scenarios where neighbours are in dispute about where their property line begins or ends, they may request a property survey which will map out the exact location of the property line separating the adjacent property. If a neighbour erects a structure that encroaches on a neighbour’s land, they may be required to remove the intruding structure at their own expense. Alternatively, the neighbours may be able to negotiate entering into an encroachment agreement in exchange for a cost. The encroachment agreement is a legally binding document signed by the involved parties and will set out what resolution was agreed upon by the parties involved.

RIGHTS OF WAY

A right of way is a type of easement which grants an individual specific access along a certain route of a person or entity’s property. An example of a right of way would be a shared driveway or pathway between two properties.

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Disclaimer: The information contained in this article is not to be construed as legal advice. The content is drafted and published only for the purpose of providing the public with general information regarding various real estate and business law topics. For legal advice, please  Contact us.

About the Author:

Shahriar Jahanshahi is the founder and principal lawyer at Jahanshahi Law Firm with a practice focus on representing business star-ups and investors in the province of Ontario. For further information about Shahriar Jahanshahi, click here.