2005-02 Easements and Release of Easements

Bulletin information:

Issue Date: March 3, 2005
Legislation: Land Titles Act, Registry Act

Bulletin content:

The purpose of this bulletin is to clarify how easements and the removal of easements are to be dealt with under the Land Titles and Registry systems. There are several procedures set out in this Bulletin that differ from previously issued processes and guidelines; in all cases the provisions of this Bulletin take precedence.

An easement is defined as a right or interest annexed to land, which permits the owner of the dominant land to impose restrictions on the owner of the servient land as to its use. Certain prerequisites are required. They include the following:

1. There must be a dominant and servient parcel of land. With the exception of Easements in Gross, an easement cannot exist independently of the ownership of land.
2. An easement exists solely for the use and benefit of the dominant land. The purpose of the easement must be set out in the document creating the easement. An easement "runs with the land"; in other words, when the dominant land (or any part of it) is transferred, all appurtenant easements are also conveyed. It is not necessary that the lands physically adjoin one another.
3. The dominant and servient lands must be owned by different parties, or owned in a different capacity by the same party. (Note the exception of Subdivision by Reference Plan procedures outlined in Bulletin 2005-01.) If the same party attains both parcels, in the same capacity, the easement is said to merge and therefore it is extinguished. Although the easement merges in law, an application to amend the register is required to remove the easement from the property in the Land Titles system.
4. The purpose of the easement must be capable of forming the subject matter of a grant. The right must be clear and specific.

1.0 Creation Of Easement

Easements are created by a transfer/grant of easement or a grant/reservation of easement in a transfer of land. They may also be created by other methods such as a court order, an expropriation plan or a condominium declaration.

The creation and removal of many easements is subject to approval under the Planning Act (exceptions include but are not limited to: those created through court order, expropriation, temporary easements for less than 21 years and those created over an entire existing parcel) however this is not monitored by the land registration system and compliance is the responsibility of the registrant.

Documents may refer to either a right of way or an easement. In either case the interest is dealt with as an easement and all the procedures and requirements set out for easements apply.

1.0.1 Transfer of Easement

A transfer creating an easement must include a registerable description in accordance with O.Reg. 43/96, for both the dominant (benefiting) and servient (burdened) lands. The transferor must be the owner of the servient lands and must not be the same party(s) as the owner of the dominant lands (transferee). The transfer of easement is registered and recorded on the servient land(s) only, but during processing in the automated system it is entered in the property description of both the servient lands and the dominant lands.

1.0.2 Creating Easements in a Transfer of Land

When an easement is created in a transfer of land, a registerable description of both the dominant and servient land, in accordance with O.Reg. 43/96 is required. The transferor must own both the dominant and servient lands at the time of registration. During processing in the automated system, the easement will be entered in the property description of both the dominant and servient lands.

An easement cannot be reserved in favour of a third party.

1.0.3 Division of Dominant Lands

Upon the severance of a parcel of land, all existing easements appurtenant to the whole, benefit each severed portion. Failure to include an appurtenant easement in the transfer of the dominant parcel is not grounds for abandoning or extinguishing the easement. The transfer of part of a parcel should include all appurtenant easements.

The benefit of an existing easement does not extend to after-acquired land.

2.0 Land Titles System

Bulletin 76019 states that encumbrances shown on the servient parcel and registered prior to the easement are included in the easement entry on the dominant lands. However, abstracting of these encumbrances has not always occurred. Effective with the issuance of this Bulletin, Bulletin 76019 is revoked and those procedures discontinued. Registrants must search the servient lands to determine any prior interests related to the easement.

2.0.1 Other Document Types Purporting to Create New Easements

As easements must be created as set out above, the land registration system will not acknowledge any attempt to create an easement in another document type, such as a charge, agreement or lease. The document may be registered, however no reference to the easement will be made on the parcel.

Prior to the enactment of the Land Registration Reform Act in 1984, easements could be created in a charge as charges were considered transfers however upon the registration of a discharge the easement was extinguished.

2.0.2 Abstracting of Easements: Examples of Property Description Entries

1. Transfer of Parcel 1 and granting an easement over part of the retained portion (Parcel 2) in favour of Parcel 1.

   Parcel 1: PT Lot1, Plan M1234, PT 1, Plan 66R12345, T/W eastment over PT LT 1 Plan M1234, PT 2, Plan 66R12345 as in LT7890.

   Parcel 2: PT Lot 1, Plan  M1234, as in RO987654 save and except PT 1, Plan 66R12345, S/T easement over PT 2, Plan 66R12345 in favour of Plan LT 1, Plan M1234, PT 1, Plan 66R-12345 as in LT7890.

2. Transfer of Lot 1 reserving an easement over part of Lot 1, in favour of Lot 2.

   Lot 1: Lot 1, Plan M1234, S/T eastment over PT 1 Plan 66R12345 in favour of Lot 2 Plan M1234 as in LT5678.

   Lot 2: Lot 2, Plan M1234, T/W easment over PT Lot 1, Plan M1234, PT 1 Plan 66R12345 as in LT5678.

3. Transfer of Lot 1 reserving an easement over part of Lot 1, in favour of Lot 2 and granting an easement over part of Lot 2 in favour of Lot 1.

   Lot 1: Lot1, Plan M1234, S/T easement over PT 1, Plan 66R12345 in favour of Lot 2 Plan M1234 as in LT4236. T/W easement over PT LOT 2 Plan M1234, PT 2 Plan 66R12345 as in LT4236.

   Lot 2: Lot 2, Plan M1234, S/T easement over PT 2 Plan 66R12345 in favour of Lot 1 Plan M1234 as in LT4236. T/W easement over PT LOT 1 Plan M1234, PT 1 Plan 66R12345 as in LT4236.

4. When an easement is not for the benefit of the whole parcel, the benefiting lands must be set out in the parcel entry.

   Lot 1 Plan M1234, PTS 1 & 2 Plan 66R45678, City of Toronto. T/W Easement Over PT

   Lot 2 Plan M1234, PT 3 Plan 66R45678 in favour of PT Lot 1 Plan M1234, PT 2 Plan 66R45678 as in LT678345.

5. Time limited or temporary easements should be abstracted with the date of expiry inserted to facilitate future system deletion. Note that if additional conditions regarding the expiry of the easement are present, the reference to the date will be excluded from the abstracted entry. (Note: this is a new procedure that comes into effect with the issuance with this Bulletin.)

• S/T Easement in Gross over PT 1 Plan 66R12345 until Year/Month/Day (yyyy/mm/dd) as in LT123456.
• S/T Easment Over PT 1 Plan 66R12345 in favour of Lot 2 Plan M1234 until Year/Month/Day (yyyy/mm/dd) as in LT4236.
• T/W Easement Over PT Lot 1 Plan M1234, PT 1 Plan 66R12345 until Year/Month/Day (yyyy/mm/dd) as in LT4236.

2.0.3 Easements in Gross

Easements in gross do not have a dominant tenement and are typically obtained by utilities and government agencies. Under the authority of section 39(1) of the Land Titles Act, easements in gross may be accepted for registration. The easement will be registered on the servient lands and upon certification, entered in the property description. The document may include ‘dominant’ lands that may not be contiguous or within the same land registration division. (e.g. their head office). These lands will not be verified and the easement will not be entered in the parcel for those lands.

The registrant is required to add a statement identifying the easement as an ‘Easement in Gross’. If the document is registered electronically, this statement may be included in Statement 61. If the document is registered in paper it may be included in Box 7. The example below illustrates the manner in which easements in gross are set out in the parcel description. (Note: These are new requirements that come into force with the issuance of this Bulletin.)

Example of Parcel Description Entry:

• S/T Easement in Gross Over PT 1 Plan 66R12345 as in LT123456.

2.0.4 Assignments of Easements In Gross

The general rule is that an easement cannot be assigned as it runs with the land. The only exception is that of an easement in gross where the purpose(s) or some of the purposes may be assigned using the existing description. If anything less than the entire extent of the easement in gross is being assigned, a registerable description is required for the assigned portion.

Examples: Pipeline Company #1 assigns some (or all) of the purposes for an entire existing easement to Pipeline Company #2, using the previous description OR Pipeline Company #1 assigns some (or all) of the purposes for a portion of an existing easement to Pipeline Company #2 and using an R-plan description.

Registrants should use a Document General in paper or an Application General when registering electronically, when assigning an easement in gross. The document must include the following statement. “I, (name of Solicitor), Solicitor, state that (name of transferor) has the right to assign the interest herein, in the easement registered as (Inst. #) to (name of transferee)” and be signed by the solicitor. If a registrant chooses to use a Transfer document the addition of the statement is not necessary. (Note: This is a new procedure that comes into effect with the issuance of this Bulletin)

A document remark will be added to the assignment or transfer referencing the original easement registration number and identifying it as a full or partial assignment.

If an easement is assigned where the benefiting party has been previously included in the thumbnail, the party should be removed and “S/T Easement in Gross…” inserted, upon certification of the assignment.

2.0.5 Easements to Fulfil Obligations in Subdivision Agreements - Rights of Entry

Rights of Entry are often reserved by developers in the first transaction on lots in new Plans of Subdivision to permit the completion of obligations, such as grading and the installation of services, pursuant to the Subdivision Agreement with the municipality. Rights of Entry are easements, and as with any easement, must clearly identify the benefiting land. The land registration system has traditionally permitted the dominant lands for Right of Entry easements to be described in a general manner, which readily identifies these lands (e.g. “all those lots within plan M-500 still owned by the transferor”). This exception to the general rule that dominant easement lands are required to be specifically identified will continue.

Right of Entry easements will be abstracted as set out below on the servient lands. There is no entry on the dominant lands. Any subsequent plans of the servient lands submitted for deposit or registration must reflect that the lands are subject to the easement for Right of Entry. (Note: The abstracting and plan requirements are new that come into effect with the issuance of this Bulletin.)

Abstracting examples:

• S/T Easement for Entry until Year/Month/Day (yyyy/mm/dd) as in LT 12345 or
• S/T Easement for Entry as in LT 12345.

2.0.6 Powers of Sale

Unless a prior chargee postpones their charge or gives a discharge/cessation with respect to the lands covered by the easement, the easement may cease to exist on a transfer under a Power of Sale. The easement will remain on title if the new purchaser in the transfer under the Power of Sale consents to take title subject to the continuance of the easement; otherwise it will be deleted from title.

2.0.7 Writs of Executions

A writ search is required against the party transferring or releasing their interest (e.g. granting or releasing an easement). If a writ is found, it is recorded as a document remark unless cleared in the normal manner.

2.0.8 Easement Parcels/PIN

Easement parcels are created when the crown has granted an easement across unpatented land. The ownership of the lands remains with the Crown and is not recorded in the land registration system. The grantee of the easement will be shown as the owner of the parcel.

2.1 Removal of Easement

An easement ceases to exist when one of the following occurs:

• The owner of the dominant land (or owner of an easement in gross) releases the easement to the owner of the servient land (see Transfer, Release and Abandonment and Deletion of Easement below);
• The expiry date of the easement is reached or other conditions have been met (see 2.1.4 Time Limited or Temporary Easements below);
• The servient land including the easement is expropriated, or
• The same party owns the dominant and servient lands. An application to amend the register noting the merging of title is required to remove the easement from the parcel register.

An easement cannot be released in a subsequent transfer by including a statement that the description excludes the easement described in an instrument number. A separate document releasing the easement is required.

2.1.1 Transfer, Release and Abandonment

A Transfer, Release and Abandonment of an easement is registered by the dominant party on the registers for both the dominant and servient lands. Consents of all parties who have acquired an interest (e.g. chargee, debenture holder) in the dominant lands subsequent to the registration of the easement must be included in a paper document or evidenced or addressed with appropriate statements in electronic documents.

2.1.2 Deletion of Easement

A Deletion of Easement document is registered by the owner of the servient lands on the registers for both the dominant and servient lands. In the document the servient owner must apply to the Land Registrar to amend the parcel by deleting the easement and must include the consent or evidence of release and abandonment from the owner of the dominant lands. The consents of all parties who have acquired an interest (e.g. chargee, debenture holder) in the dominant lands subsequent to the registration of the easement must be included in a paper document or, evidenced or addressed with appropriate statements in electronic documents.

Example of where an Interest is acquired in the dominant lands subsequent to the easement:

• “A” owns parcel 1; “B” owns parcel 2
• “A’s” title (dominant tenement) is together with an easement over “B’s” land.
• “B’s” title (servient tenement) is shown as subject to “A’s” easement.
• “A” charges parcel 1. The chargee has acquired an interest in the easement.
• “A” then registers a transfer, release and abandonment of its appurtenant interest in the easement over “B’s” parcel 2. The consent of the chargee is required.

A release of an easement in gross does not require the consent of chargees, as there are no dominant lands.

Upon certification of the release or deletion:

• The easement will be deleted from the property description (thumbnail) of the dominant and servient lands;
• The easement and release document(s) will be deleted from the parcel registers;
• If the released easement is contained in the title document which is referenced in the thumbnail as the ‘as in’ number, “Except the easement therein” will be added

Example: “PT LT 1 Con 5 as in R12345, S/T as in R12345.”  would become “PT LT 1 Con 5 as in R12345, except Easement therein.”

2.1.3 Partial Release of Easement

An easement may be partially released as to:

• The lands it originally affected;
• A purpose(s), or
• A dominant tenement(s) (if there was more than one)

Consents are required from all parties who have acquired an interest in the dominant lands subsequent to the registration of the easement. (Including the dominant owner if the release originates from the servient owner)

Example: An easement was registered against Parts 1 & 2, Plan 66R 12345. Following this, a release is registered for only Part 2.

1. Parts 1 & 2 are in the same parcel:
   1. The following instrument remark will be included in the entry of the release: “Easement LT 123 released as to Part 2 Plan 66R12345”.
   2. The easement will remain on the parcel register of the servient lands.
   3. The easement will remain in the property description (thumbnail) of the dominant and servient lands and the following remark will be entered in the thumbnail for both parcels: “Easement LT 123 released as to Part 2 Plan 66R12345 by LT 456”.
2. Parts 1 & 2 are in different parcels:
   1. Release will be registered on the Part 2 parcel only.
   2. The easement will be deleted from the property description of the Part 2 parcel.
   3. The easement and release will be deleted from the document pool of the Part 2 parcel.
   4. The easement will remain on the Part 1 parcel description and in the document pool.
   5. Dominant land thumbnail will have the following remark added: “Easement LT 123 released as to Part 2 Plan 66R12345 by LT 456”.

2.1.4 Time Limited or Temporary Easements

Easements can be created for a limited period of time, for example, five years from the date of registration of the transfer creating the easement. Upon the expiration of the time period the easement will be removed from title when an application is received from the registered owner indicating that the time frame identified in the initial easement has expired or it may be deleted without application by the Land Registrar in accordance with Bulletin No. 89004.

If other conditions are present regarding the expiry of the easement the entry will be removed from title upon receipt of an application that provides appropriate evidence to allow for the deletion.

2.1.5 Amending Easements

No provisions exist to amend an easement other than a partial release as noted in section 2.1.3. If there is an error or a change or a proposed addition to the extent or any of the provisions, the easement must be released and a new easement registered.

2.2 Electronic Registration Procedures

Below are explanations and examples of easement procedures in electronic registration. Corresponding amendments will be made to the Easement Module of Version 4 of the Electronic Registration Procedures Guide. The updated version of the easement module will be made available by a newsletter in the Teraview e-reg™ product.

2.2.1 Estate/Qualifier

Currently the registrant has the option to change the Estate/Qualifier field to ‘Fee Simple (easement)’ however the document should not be rejected if this has not been selected. In a future release of Teraview™, the ability to select an Estate/Qualifier on a document will be removed and an ‘Interest/Estate’ selection added. On a grant of easement or release of easement, “Easement” should be selected in this field; on a transfer of land that includes a reservation or grant of easement, “Fee Simple with New Easement” should be selected when available in Teraview™.

2.2.2 Transfer of Easement