An easement is a legal right that lets someone else use part of your land for a specific purpose, while you still own it. The most common example is a utility easement: a strip along the back of the lot where the hydro, gas or telephone company has the right to run lines and come onto the property to maintain them.
Most easements are registered on title, which means they stay with the land when it's sold, and the next owner takes the property subject to them. Many are routine and barely affect daily life. Some, such as a shared driveway or an easement that runs under where you'd want a garage or pool, can limit what you can do with the property. A real estate lawyer is the person to read the exact wording for any property you own or plan to buy.
What an easement is, with a plain example
An easement gives a person, company or another property the right to use your land in a defined way, without owning it. The land carrying the easement is sometimes called the servient land; the land or party that benefits is the dominant side.
Here's a typical case. A house in a newer subdivision has a hydro easement along the back lot line, a few metres wide. The owner owns that strip, pays property tax on it, and can usually grass it, garden on it and walk on it.
The utility, though, has the right to run lines through it and come in to reach them. If they need to dig, they can, and the owner may have limited say over the timing or what gets disturbed. Putting a permanent building on that strip would likely be a problem, because it would get in the way of the utility's right.
Three things make easements different from a simple permission:
- They run with the land. A registered easement binds the current owner and every future owner, until it's released.
- They're for a purpose. The document says what the easement is for (a sewer, a driveway, access), and the holder can only use the land for that purpose.
- They're specific. The registered document sets out where the easement is, how wide it is, and who benefits from it.
Common easements in Waterloo Region subdivisions
Many subdivision homes across Waterloo Region have at least one easement, usually for services. The common ones:
| Type | What it's for | Where you usually see it |
|---|---|---|
| Utility | Hydro, gas, telephone and cable lines and boxes | Along the back or side lot line, or near the front |
| Municipal services | Storm or sanitary sewers, watermains | Between houses, or across a back yard to a pond or street |
| Drainage | A swale or rear-yard catch basin that carries water across several lots | Along rear and side lot lines |
| Shared driveway | Two neighbours use one driveway between their houses | Older semis and infill in Kitchener and Cambridge |
| Access or right of way | Crossing one lot to reach another, or to reach a rear garage | Older lots, rural properties, severed lots |
| Maintenance | Entering the neighbour's side yard to maintain a wall built near the lot line | Houses set close to a side lot line |
Drainage easements and swales
Drainage easements are the ones owners run into most often. In newer subdivisions, yards are graded so water flows along shallow grassy channels (swales) to the street or to a rear-yard catch basin. The City of Waterloo asks owners not to fill or block swales with concrete, rocks, soil or plants, to keep fences at least 15 cm above the bottom of a swale so water can pass under, and to keep patios and walkways at least 0.6 m back from property lines or swales. Even where there's no registered easement, changing the grading in a way that floods a neighbour can cause problems, so check with your city before regrading.
Rural and older properties
Rural lots in Woolwich, Wilmot, Wellesley and North Dumfries are more likely to have access easements, shared lanes, or rights tied to wells and septic systems. Older urban lots can carry easements registered decades ago that nobody living there remembers.
How to find out if a property has an easement
The surest way to find out if a property has an easement is a title search, a review of the documents registered on the property's title, which your lawyer does on every purchase. Before you're that far along, there are a few ways to look:
- The survey. A survey (a drawing by an Ontario land surveyor) usually shows registered easements as a marked strip, often labelled as a "Part" on a reference plan. If the seller has one, ask to see it.
- The parcel register. Ontario's land records, including registered easements, are searchable online through OnLand, the province's land registry portal, for a fee. The parcel register lists every registered document; the easement itself is a separate document you can order. ServiceOntario can't interpret records for you, so a lawyer or title searcher is the one to explain what you find.
- The listing and the seller. Listings sometimes mention a shared drive or easement. You can ask the seller's agent directly.
- What you can see. Hydro boxes, utility markers, a catch basin in the back yard, or a driveway that serves two houses are clues.
Unregistered easements
Not every easement is on the register. Section 44 of Ontario's Land Titles Act says registered land is subject to rights of way and other easements that exist, unless the register says otherwise, even if they aren't registered. These are uncommon, but they're one reason your lawyer also looks at the survey and asks what's on the ground.
What the standard purchase agreement says
The standard Ontario agreement of purchase and sale says the buyer accepts title subject to certain easements, including minor easements for domestic utility or telephone services and easements for drainage, sewers and utility lines that don't materially affect the use of the property. An easement that does materially affect how you can use the property is something your lawyer can raise with the seller before closing. Ask your lawyer how this applies to the specific easement.
What you can and can't build on an easement
What you can build on an easement depends on its wording, but the general rule is that you can't do anything that interferes with the holder's right. In practice:
- Usually fine: lawn, garden beds, ordinary landscaping, walking and playing on it.
- Often allowed, at your risk: a fence or a small shed that can be moved. If the holder needs access, they may be able to remove it and may not have to put it back.
- Usually not allowed: permanent structures like a garage, addition, inground pool or concrete pad over a utility or sewer easement, or anything that blocks a drainage swale.
Two checks before you build: read the easement document (your lawyer can pull it), and talk to your city's building department. A building permit application can flag an easement conflict, and some utilities have their own rules on how close you can build to their lines. If you're planning a bigger project, such as adding a unit, check easements early, because a garden suite or addition may need space that an easement takes up.
Shared driveways
A shared or mutual driveway is a pair of easements: each neighbour has the right to cross the other's half. The registered document may say who pays for repairs and snow clearing, but often it doesn't, and you and your neighbour have to agree. Neither owner can usually park in a way that blocks the other or put up a gate without agreement.
Can an easement be removed?
An easement can sometimes be removed, but not by the landowner alone. An easement belongs to the person or company that holds it, so it generally takes their agreement or a court order to end it. The usual ways:
- A release. The holder signs a release that's registered on title. Utilities and municipalities sometimes release easements that are no longer needed, but they won't release one they still use.
- The same owner on both sides. If one person comes to own both the benefiting and the burdened land, the easement may end. How this works under Land Titles is a question for your lawyer.
- It expires. Some easements are written for a set time or purpose and end when that's over.
- A court order. Possible, but it takes time and legal costs, and the result isn't guaranteed.
Easements created by long use
Prescription is a legal doctrine that creates an easement through long, open use of someone else's land. In some places, using someone's land openly for 20 years can create an easement this way. In Ontario, section 51 of the Land Titles Act stops new rights like this from being created on land registered under Land Titles, which now covers most of the province. A right can still exist if the 20 years were completed before the land was converted to Land Titles.
There's a local example. In 2020, the Court of Appeal for Ontario upheld a prescriptive easement for a Woolwich Township watermain that had run across private land since about 1980, because the 20 years of use were completed before that land converted to Land Titles in 2002. Cases like this are fact-specific, so talk to a lawyer if you think one applies to you.
Easements when you sell
A registered easement passes to the buyer, so it's part of what you're selling. Routine utility and drainage easements rarely come up in a sale; buyers in subdivisions expect them. Easements that affect use, such as a shared driveway or an access right across the back yard, are worth disclosing early and explaining with the registered document in hand.
If you're curious how your home's value tracks against similar homes in your area, the home value page follows that over time, and the Kitchener, Waterloo and Cambridge market pages show recent trends.