Servitudes
When purchasing property, the Seller’s and Buyer’s Notary or lawyer will make appropriate arrangements to remove all financial charges (mortgages, liens, CPLs, judgments, etc.) from the property title in accordance with the standard contract of purchase and sale. However, non-financial charges registered against a title “run with the land” and remain on title even as ownership changes. Servitudes are non-financial charges that create and bestow rights and interests over a property to someone other than the property owner. These interests may affect a property owner’s ability to deal with the property in a manner of his choosing and, consequently, may be important when determining fair market value (FMV) of the property. Prudent property buyers should inquire as to the non-financial charges and plans registered against the property title prior to making an offer to purchase.
The most common types of servitudes are easements, covenants and building schemes, but there are also other less common types: rent charges, party wall agreements and profits à prendre. This article highlights some key components of easements only.
Easements
An easement on property grants an interest in or right over property through the incumbrance of another property; importantly, it confers an interest in land, but not exclusive possession or ownership over land. In other terms, an easement benefits one property (and therefore its property owner) by burdening another piece of property. The benefiting property is called the dominant tenement and the burdened property (over which the easement on property is registered) is called the servient tenement.
An easement on property is created to address a reasonable necessity of the dominant tenement, such as access, right of way or encroachment issues. (Note: the properties do not need to be, but may be, contiguous). For example, Property A abuts a giant mountain face, through which there is no access. Property B is located between the only road and Property A. An easement allows Property A (dominant tenement) access to pass over a certain portion of Property B (servient tenement) in order to allow those owners of Property A to access the road.
Depending on the location of the easement, it can have adverse effects upon the servient tenement, which may be prohibited from building (expanding their house, installing a pool, etc.) if doing so would impede the dominant tenement’s access under the easement. This is why agreeing to register an easement on property may sometimes be done in exchange for a fee or ‘price’ and should be carefully considered before being granted. An easement on property can only be removed with the consent of all affected property owners and, upon registration, the easement binds all future property owners.
Other examples include access through common hallways, rights to use lakeside property for recreational purposes, or the right to use a neighbor’s ditch for water run-off.
Statutory Rights of Way (SRW) are special types of easements that are created by British Columbia statute (section 218 of the Land Title Act) for use only by the Crown, government agencies and utility corporations. Statutory rights of way do not require dominant or servient tenements, which makes them ideal for setting up sewer maintenance, highways, gas lines, power poles, telephone lines and other public works. For example, if a utility company sets up thousands of kilometers worth of telecommunication lines, a requirement of that company to identify each customer serviced would be challenging and would not serve any real purpose. Thus, a statutory right of way allows for an exemption from the tedious requirement as it pertains to these specific large-scale projects.
Regardless of type, all easements must be registered at the Land Title Office (LTO) in order to be binding upon third parties. An easement on property can be infinite in duration, can last for only a specified term, or can terminate upon the occurrence of a specified event. If an easement is infinite, it is difficult to terminate the easement, as it would require express agreement from all related parties (property owners) or removal by court order.
Summary
An easement on property grants an interest in or right over property through the incumbrance of another property; importantly, it confers an interest in land, but not exclusive possession or ownership over land. In other terms, an easement benefits one property (and therefore its property owner) by burdening another piece of property. The benefiting property is called the dominant tenement and the burdened property (over which the easement on property is registered) is called the servient tenement.
An easement on property is created to address a reasonable necessity of the dominant tenement, such as access, right of way or encroachment issues. (Note: the properties do not need to be, but may be, contiguous). For example, Property A abuts a giant mountain face, through which there is no access. Property B is located between the only road and Property A. An easement allows Property A (dominant tenement) access to pass over a certain portion of Property B (servient tenement) in order to allow those owners of Property A to access the road.
Depending on the location of the easement, it can have adverse effects upon the servient tenement, which may be prohibited from building (expanding their house, installing a pool, etc.) if doing so would impede the dominant tenement’s access under the easement. This is why agreeing to register an easement on property may sometimes be done in exchange for a fee or ‘price’ and should be carefully considered before being granted. An easement on property can only be removed with the consent of all affected property owners and, upon registration, the easement binds all future property owners.
Other examples include access through common hallways, rights to use lakeside property for recreational purposes, or the right to use a neighbor’s ditch for water run-off.
Statutory Rights of Way (SRW) are special types of easements that are created by British Columbia statute (section 218 of the Land Title Act) for use only by the Crown, government agencies and utility corporations. Statutory rights of way do not require dominant or servient tenements, which makes them ideal for setting up sewer maintenance, highways, gas lines, power poles, telephone lines and other public works. For example, if a utility company sets up thousands of kilometers worth of telecommunication lines, a requirement of that company to identify each customer serviced would be challenging and would not serve any real purpose. Thus, a statutory right of way allows for an exemption from the tedious requirement as it pertains to these specific large-scale projects.
Regardless of type, all easements must be registered at the Land Title Office (LTO) in order to be binding upon third parties. An easement on property can be infinite in duration, can last for only a specified term, or can terminate upon the occurrence of a specified event. If an easement is infinite, it is difficult to terminate the easement, as it would require express agreement from all related parties (property owners) or removal by court order.
Summary
- An easement on property conveys an interest relating to use of land only. It does not grant exclusive possession rights or ownership rights.
- Easements need a dominant and servient tenement – except in the case of a statutory right of way – and can grant rights to more than one person.
- Easements can be finite or infinite, but only “run with the land” (bind third parties) if registered at the Land Title Office.
- An easement may affect a property’s fair market value.
