Q: My neighbour and I have had an excellent relationship for years. Over 20 years ago we had a gentleman’s agreement to swap some small parcels of land. He wanted a strip of my land so he would have easier access to his land. In return, he let me use some of his land. This relationship has continued to this day without any problem. However, we are both of an age where we are thinking of leaving farming. When we sell, can the new buyers carry on with this arrangement?
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A: First, I am delighted that you and your neighbour are able to work out such an arrangement. Too often I hear stories of neighbours who can’t agree.
There is nothing wrong with the arrangement that you have. However, your arrangement is not binding on any future owners. It is simply a contract between you and your neighbour, who I’ll call Ed. When you sell land, you are selling it as described in the land titles office. So if you sell land, your buyer is not bound by the arrangement you have with Ed. Of course, your buyer could enter into a new agreement with Ed to honour the arrangement you had. Similarly, when Ed sells, his buyer is not bound by any arrangement with you.
In my view it would be best to formalize your arrangement so that it is reflected in the land titles office. This could be done in two ways. You could grant Ed an easement, giving him the right to cross a portion of your land to access his land. Ed in turn, could grant you an easement to use part of
his land.
These easements should be registered in the land titles office. Once registered, they run with the land and bind all future owners.
An alternative would be to transfer small parcels of land to each other. You would transfer the strip that Ed needs and he can transfer you an equivalent amount of land. Again, these transfers would be registered in the land titles office. Such a transfer may require a surveyor’s certificate defining the land transferred.
As well, you would have to check with your local municipality regarding subdivision rules because you are dividing a quarter section of land.
In either case, you will encounter legal fees and possibly survey fees. However, taking one of the steps I’ve outlined will ensure that this arrangement is binding on the land and on future owners.
Could you and Ed simply agree that when you sell the land you will each insist the new buyers
honour this arrangement?
First, this is a less permanent arrangement as it cannot bind subsequent buyers. Breach of a contractual arrangement may only lead to damages. For example, let us say that you decide not to honour your arrangement and you bar Ed from crossing the land. Ed may be able to claim damages but there is no guarantee the court will grant him the right to continue crossing the land. Under the first two arrangements I’ve suggested, he would have a guaranteed right to cross the land.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
