Q: We bought a section of land, aware that there was a caveat registered against it that protects a right-of-way for a neighbour. This right-of way runs between our house and barn and proves to be a real inconvenience. The neighbour’s farm is not landlocked. There are road allowances adjoining their land, though the road has never been built. What would be our chance of getting the easement cancelled if we went to court?
A: As a landowner you can grant someone the right to cross your land. That right can be of two kinds.
Read Also
Food can play a flavourful role in fun summer activities
Recipes – popsicles are made with lactose-free milk and yogurt so are perfect for those who can’t tolerate milk, while everyoneelse will also enjoy them
First, it can be a mere contract binding only the current owners. Or, the agreement can be a grant of a right in land that will bind all future owners. Such an agreement is an easement and can be registered against title to the land.
Dell can say to Bill that as long as you and I are farming you can take a shortcut across my land. This would be an example of the first type of agreement. Or they could agree that this right to cross will run with the land, and will not only bind Dell but all future owners, and that this right is not only for Bill’s benefit but all future owners of Bill’s land. This is called an easement.
For a valid easement, several requirements must be met. First, there must be land that is receiving a benefit, Bill’s land in this case, and land which is providing a benefit, such as Dell’s land.
Secondly, the benefit must relate to the land. A promise by Dell to take Bill’s daughter to Saskatoon has nothing to do with the land and this promise could not be the basis for an easement. The easement must be intended to run with the land.
An easement cannot require the owner of the land providing the benefit, Dell, to pay money or do something positive to enforce the easement. A clause requiring Dell or
his successor to grade the right-of-way regularly and to clear snow from it would be invalid.
To succeed in court, you would have to show that at least one of the requirements for a valid easement has not been met.
In my experience and research, easements most commonly fail because there is no clear intention that the agreement binds
future owners.
The fact that a caveat has been filed to protect the supposed easement does not make it valid. An interest protected by a caveat can be challenged in court and the caveator can be called upon to prove that he has a valid easement.
I would suggest that you contact a lawyer to examine the actual easement agreement.
If the easement is a valid one, then your neighbour and anyone he sells to, has a right-of-way across your land. The only way to get rid of it would be to have your neighbour agree to give up his rights in a formal discharge of easement.
To do so, you may have to buy out his interest. You could also negotiate with him for the right-of-way to be moved to a more convenient location for you.
