HOW EASEMENTS AFFECT PROPERTY USE

All purchasers of residential property should make sure that they are aware of, and understand the nature of, easements existing over the property that they wish to purchase. This applies to both new and resale homes. Some easements are very standard and actually benefit the property, but sometimes the existence of even a standard easement may make it impossible for you to make that improvement or alteration that you have planned.

An easement is a right granted to a person other than the owner of the property to pass over or use a specified portion of that property for a particular purpose.

Most lots in newer subdivisions are subject to easements in favour of the municipality permitting it to install, repair and maintain services to the subdivision and to the lot itself. These utility easements vary in size but are about 2 metres in width and may be located over the rear of the lot. In older subdivisions the easements are often across the front of the lot. Such an easement allows the municipality to install the electrical, water, gas or telephone services necessary for the subdivision.

It is important to realize that although you own the 2 metres in question, you must leave that area essentially unimproved so that the municipality may at any time access the services for the purpose of repair. Generally, if the municipality must have access to the services in order to repair them, it must pay for the cost of returning the property to its pre-existing condition. This would include grading and sodding.

This type of municipal easement for the supply of services, if properly located, does not impair your use of the property and does not affect its marketability.

Other forms of easement may be of more concern. In newer subdivisions the developer may retain an easement right to access all lots in the subdivision for several years after closing. This is for the purpose of making changes to the property to comply with obligations under the subdivision agreement with the municipality.

For example, if the municipality has not given its final grading certificate, they can require the developer to alter the grading. The developer must then have access to your property to comply.

Owners of linked housing units or homes built on narrow lots, may be surprised to learn that their neighbours have easement rights over their lots for the limited purpose of repairing or maintaining their own homes.

Similarly, owners of corner lots will often be surprised to learn that their properties are subject to sight triangle easements, precluding any improvement to an area at the front corner of their property.

Property outside a registered plan of subdivision often has the most complicated set of easements. These rights may be in favour of neighbours or even in favour of Ontario Hydro, and may substantially affect the proposed use of the property by severely limiting the area available for improvement.

Remember that every situation is different and if you have any concern about your rights as a homeowner or as a purchaser, you should consult your lawyer.

Bernie Jankowski practices real estate, corporate and estates law in Barrie, Ontario. If you have questions about this article or real estate law in general, write to That's The Law, c/o Toronto Sun, 333 King St. E., Toronto, M5A 3X5.

Email: bernie@bjankowski.com