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WHAT IS IT? Think of a common law easement as an instrument that makes life easy for a neighbour. The most usual common law easement is a right to cross over someone's land to get to your own.
A common law easement is a right which an owner of land has to use the land of someone else in a particular way. A common law easement is attached to the land which benefits from the easement, so it belongs to whoever owns that land. 191 For a common law easement to exist there must be two neighbouring or nearby pieces of land. 192
The land burdened by the common law easement is called the servient tenement. The land which gets the benefit of the common law easement is called the dominant tenement. For example, if one landowner has the right to cross another landowner's property to reach his or her land, the first landowner's property is the dominant tenement and the second's is the servient tenement.
In this chapter we discuss only common law easements — the kind that property owners create deliberately, for a mutually understood purpose, and register with the land title office. 193
Examples of common law easements include a right for the owner of the dominant tenement to
AN EXAMPLE.Suppose that the local cycling club wanted to make a bicycle path along a river bank. The land along the river was owned by a variety of industrial landowners, who were persuaded that the bicycle path would be an important contribution which they could make to the community.
The cycling club wants to ensure that the path will be available for people to use even if one of the businesses sells its property to a new owner who does not care about the cycle path. It could negotiate common law easements, to be registered against the property of each of the owners, expressed to be in favour of the owners of the adjacent property. That way the easement for the cycle path would be on the title of each of the properties over which the path crossed, and anyone buying one of those properties would have to buy it subject to the easement.
POSSIBLE APPLICATIONS. There are a number of circumstances in which an easement would be useful. For example:
HOW IS IT CREATED? A common law easement is created by a written agreement between the servient tenement owner and the dominant tenement owner, which is then filed in the land title office. The easement agreement specifies what restrictions there will be on the servient tenement owner's use of his or her land, or what rights the dominant tenement owner will have over the other's land, or both.
The agreement must satisfy the technical and restrictive legal rules governing common law easements. The rules for a valid common law easement are:
A fourth traditional requirement, that the owners and possessors of the dominant and servient land must be different people, has been abolished by statute in British Columbia. 196
To examine each rule in turn:
1. There must be a dominant and a servient tenement.
The dominant tenement and the servient tenement do not have to be side by side. One owner might have a common law easement over another's land, two doors away, and over a neighbour's land, next door, to get to his or her land. 197
2. A common law easement must benefit the dominant tenement.
For example, if the only purpose of an easement is to benefit the servient tenement — instead of the dominant tenement — then it would not be valid. 198
Since there are no reported Canadian cases where easements have been used for a conservation purpose it is not clear what conservation obligations over one parcel of land would be held to benefit another parcel of land. If both parcels of land are important habitat, and both require preservation to ensure sufficient area, an easement over the servient tenement to monitor a restrictive covenant would probably be seen as benefiting the dominant tenement.
3. The right which is embodied in an easement must be "capable of forming the subject matter of a grant of land."
In order to be capable of forming the subject-matter of a grant of land, the right embodied in the easement must be within the general nature of rights capable of existing as easements. 199 Obviously, this requirement is not very specific. 200 However, it does include some clear conditions: there must be a capable grantor, for example, an adult or an incorporated body able to make such grants; there must be a capable grantee; and the right must be reasonably definite. 201
HOW LONG CAN IT LAST? An easement can last for as long as the parties want it to, even indefinitely.
Because an easement is a legal interest in land, part of the bundle of rights that comprise land ownership, it runs with the land. This means that if a landowner grants an easement to another landowner, that easement will stay in place even if both landowners sell the properties. New landowners are bound by, and can take advantage of, the easement.
WHO MONITORS AND MANAGES THE LAND? The division of rights and responsibilities between the owners of the dominant and servient tenements is set out in the easement agreement.
The easement holder monitors compliance with the easement agreement. If two neighbours had reciprocating covenants and easements to protect their properties, each would be able to monitor the other. If a conservation organization held covenants and easements with respect to a property, the easement could allow the group to enter the land to monitor compliance.
Generally the owner of the servient tenement manages the land, that is, uses it for any purpose not inconsistent with the easement agreement.
HOW CAN THE LAND BE PROTECTED OVER TIME? Because an easement runs with the land, both with the dominant tenement and with the servient tenement, protection of both pieces of land in an easement agreement will survive the sale or disposition of either piece of property.
If the land is not being managed according to the provisions of the easement agreement, the easement holder can enforce the easement. As with other tools like covenants which are binding over time, it is important that the easement agreement sets out clearly a baseline description of the property, and describes exactly what uses of the servient tenement are permitted or prohibited. 202
If there are disagreements about compliance with the easement agreement, and they cannot be resolved by negotiation, the easement holder can ultimately go to court to enforce the easement. An easement holder also can sue any third party which is interfering with its easement rights.
HOW IS IT TERMINATED? The dominant tenement owner can put an end to an easement in his or her favour by filing a release of it in the land title office. 203
Although the owner of the servient tenement cannot terminate an easement unilaterally, he or she may be able to have the court remove the easement under section 31 of the Property Law Act since the court has the power to terminate an easement if the court thinks that
191. One text defines an easement this way: "An easement is a privilege without profit annexed to land to utilize the land of a different owner (which does not involve the removal of any part of the soil or the natural produce of the land ) or to prevent the other owner from utilizing his land in a particular manner for the advantage of the dominant owner." See Anger and Honsberger, above at footnote 44, at 925.
192. This is true at common law. It is possible to create an easement without having two neighbouring pieces of property under section 214 of the Land Title Act, and under section 27 of the Heritage Conservation Act>. See Chapter 19 on Statutory Rights of Way and Chapter 18 on Heritage Conservation Covenants and Easements.
193. A legal easement may also be created by statute or by grant. The law also recognizes equitable easements, but a discussion of equitable easements is beyond the scope of this chapter.
194. See Chapter 14 on Restrictive Covenants.
195. Anger and Honsberger, above at footnote 44, at 925.
196. The Property Law Act, R.S.B.C. 1979, c. 340, s. 18(7).
197. They can be separated by significant distance if it can be shown that the dominant tenement is benefited by the easement, for example, if there is a water pipe feeding the dominant tenement and running over a significant distance. Anger and Honsberger, above at footnote 44, at 925.
198. Most of the cases about whether an easement benefits the dominant tenement focus on whether the right is merely a contractual right between the owners of the two parcels of land. The big difference is how long the obligation lasts: if it is found to be an easement it runs with the land and can last forever.
199. There are other aspects to this condition: there must be a capable grantor, for example, an adult or an incorporated body able to make such grants; there must be a capable grantee; and the right must be reasonably definite.
200. Anger and Honsberger, above at footnote 44 at 928.
201. Ibid. at 928-9.
203. See Anger and Honsberger, above at footnote 44, at 972. Common ownership and possession of the dominant and servient tenements does not extinguish an easement: the Property Law Act, R.S.B.C. 1979, c. 340, s. 18(7).
204. Property Law Act, s. 31.
205. It would be preferable for there to be a statutory provision allowing a registrable conservation covenant in favour of a conservation organization, which would remove the uncertainty as well as the other disadvantages of common law easements. See Chapter 23, Conservation Covenants, and David Loukidelis, Using Conservation Covenants to Preserve Private Land in British Columbia>, above at footnote 3.
