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What is an Easement?

An easement is the right over another’s property. It grants the right to do something; such as a shared driveway or the right to walk across a property. An easement can also restrict the use of the property by restricting the owner from doing certain things. A property owner cannot, for example, put up a hedge or fence across a right-of-way.

An easement usually requires two separate properties: one dominant and one servient. The easement can be exercised by the owner of the dominant property over the servient property. The right is attached to the dominant property. This means that when the property is transferred or sold the rights will go with the land and can be exercised by the new owner or occupant.

An easement can be created several ways; by an agreement, statute, implication, or prescription. For example, if a two properties share a well, a well agreement can be registered at the land titles office as an easement. Statutory easements are easements created by an act of government. In Manitoba, public utilities are granted statutory easements to allow them place power lines or other service lines on property.  A common example of an easement by implication is when a riverfront lot is subdivided such that only one of the lots is adjacent to the river. The owner of the river front property has no access to the road so an easement by implication gives them the right to drive across the other property. Otherwise, the purchaser would not be able to use or access the property by the same means as the previous owner. Sometimes an easement is created by prescription. For an easement to be created by prescription, the act must be done openly, without approval, for an extended period of time (20 years or more), and continuous.

Unlike most types of property interests, some easements do not have to be registered at land titles to be valid.

How We Can Help

This can be a very complicated area of law. Please contact one of our lawyers if you are considering a property transaction that may be affected by an easement.

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Notice: The articles on our website are provided for general information purposes only and should not be relied upon as legal advice or opinion. They reflect the current state of the law as at the date of posting on the website, and are subject to change without notice. If you require legal advice or opinion, we would be pleased to provide you with our assistance on any of the issues raised in these articles.