Easements

Question 1

what is an easement

Answer 1

• Privilege without profit annexed to land to utilize the land of a different owner, or to prevent the other owner from utilizing their land in a particular manner for the advantage of the dominant owner - no right of possession
• Does not involve the removal of any part of the soil or natural produce of the land

Question 2

right of use for an easement is granted

Answer 2

by a landowner over their land to owner / occupant of other land

Question 3

easement binds the owner’s land

Answer 3

for the benefit of the other landowner

Question 4

easement is registered in

Answer 4

the land title system

Question 5

t/f easements run with the land

Answer 5

yes!

Question 6

what is the function of an easement

Answer 6

• Function of an easement is to improve the utility of a piece of property
• Placing a burden over one piece of property is permitted if it is to benefit another’s property

Question 7

four rules for easements

Answer 7

1. Must be a dominant and servient tenement
2. Easement must accommodate the dominant tenement (some real benefit must accrue to Dominant tenement (reasonably necessary))
3. Dominant and servient tenements must “not be both owner and occupied by the same person” – they cannot both be in the hands of the same person (merger of title)
4. The easement must be capable of forming the subject-matter of a grant
   - Transfer of possession is not possible, so we need to grant to allow the right to enjoy and use the property
   - The pink line cant be transferred to A because its under possession of B – rules of possession will not be applied so need grant to allow person to cross B to go to dominant tenant

Question 8

four types of easement created by common law

Answer 8

express grant, implied grant, reservations grant, prescription

Question 9

express grant

Answer 9

• Requires certainty with no joint occupation – different owners for piece of land
• Expressly created, there will be a grant attached to the title of property
• There are terms of the grant set out and there is typically a clause (in writing). The clause will indicate what the grant is, it will be explicit
• Registered with land title act (a verbal agreement can be enforced in equity if sufficient acts can be proven)
• When no words of limitation are recited, the duration of the easement is determined with regard to the surrounding circumstances (not eternal)
• Express is the default, then if not, then look to implied, from implied look to ensure it wasn’t turned into a reservation or a prescriptive

Question 10

are implied grants registered or expressed

Answer 10

no

Question 11

easement of necessity

Answer 11

• sub of implied
• some land retained by the grantor over which access can be granted
• easement may be implied as a necessary incident of a property transaction (right of access arising from necessity) – if conveyed land would be inaccessible without easement

Question 12

intended easement

Answer 12

• sub of implied grant
• implication of common intention of the parties
  
  • arise by implication to give effect to the common intention of the parties, having regard to the purposes for which the land has been granted

Question 13

easement of apparent accommodation

Answer 13

• sub of implied easements
• Allows a purchaser to acquire amenities (easements that the purchased land appear to enjoy) – pool or garden associated with club house

Question 14

two requirements for the Wheeldon rule, for easement of apparent accommodation

Answer 14

1. It must be in use at the date of the transfer (continuous and apparent)
2. It must be reasonably necessary for the enjoyment of the property and continuous

Question 15

reservations grant

Answer 15

-an interest retained by a grantor on a transfer of land to some other person
- On sale/lease of property an owner may wish to reserve an easement over the land that has been transferred, for the benefit of an adjacent or nearby tract that has been retained
- The grant is not for just anyone but for one party
- Used for formalization of easements and to avoid future litigation
- Its stronger than an implied grant because then you don’t have to go about proving the implied consent

Question 16

Prescriptive easement

Answer 16

• long uninterrupted use
• Party has access to another person’s property for a certain period of time without permission, then it was prescribed a right to use the land

Question 17

test for prescriptive easement

Answer 17

Prescription Easement must have been enjoyed without 1) violence, 2) secrecy, and 3) permission (not clandestine)

Question 18

ontario exception for prescriptive easement

Answer 18

in ON if a law or statute, no one may acquire prescriptive right to air or light for benefit of a house, workshop, or other building

Question 19

easements by statute

Answer 19

• Special rights conferred by statute
• May include easements in favour/against public or private entities
• Utility companies, public companies have the ability to access your land, have easement for those purposes

Question 20

termination of easement three ways

Answer 20

natural causes
if the easement is subject to a condition subsequent or determinable
when any required element ceases to exist

Question 21

profits a prendre

Answer 21

• A profit entitles the holder with the right to enter someone else’s land and take / remove natural resources from it, such as crops, turf, soil, grass or fish, extract minerals or oil and natural gas (but not water) from land belonging to another
• The holder has the right to enter the land to exercise profit

Question 22

two types of profits a prendre

Answer 22

appurtenant and in gross

Question 23

profits a prendre appurtenant

Answer 23

attached to a dominant tenement

Question 24

profits a prendre in gross

Answer 24

held independently of land

Question 25

creation of a profit a prendre

Answer 25

- express grant - reservation in conveyance - prescription

Question 26

what is a licence

Answer 26

License is merely permission to use a particular parcel. It can be discontinued at any time

Question 27

positive easement

Answer 27

- Positive Easement = allows activity - Allows holder (dominant servient) to engage in activity on servient tenement ○ Activity would be considered a trespass without permission granted by easement ○ This is less than permanent occupation – IE no possession is given ○ No rights of removal (crops, trees, minerals, etc)

Question 28

negative easement

Answer 28

- Negative Easement = restricts activity - Servient owner prevented from using servient land of easement in a certain way ○ No building so as to obstruct sunlight for dominant tenement ○ IE servient owner cannot build a building to obstruct sunlight from dominant tenant

Question 29

ratio from Husky

Answer 29

- If the grant creates sole and exclusive use that is akin to possession then the criteria is met and no easement is formed ○ Issue narrowed to whether grant is inconsistent with possession of servient owner ○ In this case the grantor's rights were only curtailed by right of way but did not deprive completely § He had full use and enjoyment of his land aside from the negative easement