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This appendix sets out a brief summary of the law of easements.

Definition of Easement

An easement may be described as a right to the use of, or a right to restrict the use of, the land of another person in some way. An easement may be either positive or negative.

Positive Easement

A positive easement gives an owner a right to do some positive act on another owner’s land, for example, to drive a car over a neighbour’s land, or to erect a sign over a neighbouring owner’s store.

Negative Easement

A negative easement imposes a restriction on the use an owner may make of their land. For example, an owner may be restricted from building so as to block light from a neighbour’s window, or from removing the supporting soil next to the boundary of a neighbour’s property. The registrar endorses a negative easement as a restrictive covenant.

Positive Obligations

Neither positive nor negative easements involve the imposition of a positive obligation upon a servient tenement holder. Accordingly, the owner of a servient tenement cannot be bound by way of an easement to maintain, repair, or improve the easement or structures located upon it to ensure the enjoyment of the easement by the dominant tenement, though the owner must not deal with the servient tenement in a manner that would render the easement over it incapable of being enjoyed or more difficult to enjoy. A person wishing to place a positive obligation upon the owner or occupier of neighbouring land must do so by other means such as a personal covenant, which will not run with the land.

Four Essential Characteristics of Easements

At common law, an easement has four essential characteristics:

  1. There must be a dominant and a servient tenement.
  2. An easement must accommodate the dominant tenement.
  3. An easement must be capable of being the subject matter of a grant by deed.
  4. The dominant and servient tenements must not be owned and occupied by the same person.

(Note that s. 18 of the Property Law Act has altered this common law rule, as discussed below.)

There Must Be a Dominant and Servient Tenement

Dominant and Servient Tenements and Owners

There must be both a dominant tenement and owner and a servient tenement and owner. For example, a servient owner grants a dominant owner a right of way over the servient owner’s property.

Easement Distinguished from Licence

An easement is an interest in land; a licence is not an interest in land but is a personal right. An easement must be appurtenant or attached to a dominant tenement, and passes with land; a licence does not pass with land. For an example of a licence, see the annotation for Bolton v. McMurdoch (1983), 27 R.P.R. 286 (B.C.S.C.) under s. 20 of the Act.

An Easement Must Accommodate the Dominant Tenement

An easement must enable the dominant owner to make fuller use of the dominant tenement as a tenement; that is, an easement must confer a benefit on the dominant land as land. For example, in Hill v. Tupper (1863), 2 H. & C. 121, 159 E.R. 51 (Exch.), Tupper, a canal owner, leased land on the canal’s bank to Hill and gave him the sole right to let out pleasure boats on the canal. Tupper then let out rival boats, and Hill sued. Hill claimed he had an easement to put boats on the canal. The court held that no easement existed to benefit the land for Hill’s better use of the land. In fact, the reverse was true. Hill needed the land to exploit his licence to let out boats. Hill’s right was not an easement but a licence, a contractual right personal to him.

An Easement Must Be Capable of Being the Subject Matter of a Grant by Deed

The right must be capable of definition. The right must not be uncertain or indefinite. For example, the right to a view or prospect is too vague to be the subject matter of a grant. However, the right to light, while vague, is well established, though regarded by some as an anomaly. Certain easements are well established, such as the rights to light, support, continued flow of water through an artificial water course, and air. New easements can still be developed but must be similar to easements already existing.

Common Law Rule That the Dominant and Servient Tenements Must Not Be Owned and Occupied by the Same Person

Section 18(5), (7), and (8) of the Property Law Act has altered this common law rule:

  • 18 (5) An owner in fee simple or an owner of a registered lease or sublease may grant to himself or herself an easement or a restrictive covenant over land that he or she owns for the benefit of other land that he or she owns in fee simple, or of which he or she is the owner of a registered lease or sublease, but a grant under this subsection must be consistent with the interests held by him or her as grantor and grantee at the time of the grant.
  • ...
  • (7) Common ownership and possession of the dominant and servient tenements does not extinguish an easement.
  • (8) Common ownership and possession of the burdened and the benefited land does not extinguish a restrictive covenant.