Easements (Grants of)
This document provides policy and procedural direction to ministry staff on how the ministry may grant easements, such as rights of ways, over public lands, consistent with Section 21 of the Public Lands Act.
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Subject: Easements (Grants of)
Policy: PL 4.11.04
Compiled by – Branch: Crown Forests and Lands Policy Branch
Section: Crown Lands Section
Date issued: April 1, 2019
Replaces directive title: Same
Number: PL 4.11.04
Date issued: April 1, 2018
Section 21 of the Public Lands Act provides that the Minister may grant easements in or over public lands for any purpose.
Crown easements are commonly granted for rights-of-way for communication lines including fibre optics, pipelines, water intakes, effluent discharge pipes, electrical transmission lines and roads. An easement is also the preferred form of occupational authority to authorize the right to flood Crown land (e.g. for water power development and the occupation of land under water (e.g. lake bed) for the buffer area adjacent to in-water cage aquaculture facilities). Since an easement grants only a specific right (e.g. to install and maintain a pipeline), the land traversed by it may be subsequently sold, leased, or otherwise disposed of, provided the conveyance is made subject to the previously granted easement. Because an easement does not grant exclusive possession, an easement holder cannot stop others from using the easement area for purposes which are not inconsistent with the purpose of the easement.
An easement has four characteristics:
- there must be both a dominant and a servient tenement, except for easements in gross expressly authorized by statute
- the dominant tenement must benefit from the easement
- the dominant and servient tenements must be held by different persons and
- a right over land cannot amount to an easement unless it is capable of forming the subject of a grant, i.e. it must be capable of definition and not vague and uncertain
Granting an easement as an alternative to other forms of land occupational authority will be considered by the Ministry where an applicant who holds other land wishes to obtain access across Crown land and does not require or should not be provided with exclusive possession of the servient tenement.
Granting of easements over Crown lands in Ontario first became common in the 1950's when province spanning gas pipelines were being built. Occupational authority by lease or licence of occupation was considered inappropriate because such authority was considered to be "exclusive possession", which created the potential to interfere with public travel across or along the right of way.
2.0 Program direction
To ensure that the granting of occupational authority through easements is made in a fair, reasonable and consistent manner across the province.
This policy applies provincially to all right of way situations or where flooding rights are required, or where the applicant does not require, or where MNRF does not wish to grant, exclusive possession of: ungranted public lands; acquired property which has been deemed to be public lands in accordance with subsection 38(2) of the Public Lands Act; and common and public highways in territory without municipal organization.
When considering the disposition of public lands by easement, the Ministry shall have regard for the disposition review process provided in PL 4.02.01 Application Review and Land Disposition Process.
2.3 Objectives and strategies
To encourage the return of the easement interest to the Crown, when the easement is no longer required.
Easements will be issued with a term usually not exceeding twenty (20) years to facilitate the return of the easement interest in the servient tenement to the Crown when it is no longer required by the grantee, or when the grantee neglects to pay the annual rent. Where the land traversed by the easement is to be subsequently sold to a third party, the easement will be granted in perpetuity.
To collect an administrative fee for preparation of all easement documents.
The issuance of an easement involves substantial work for the Ministry including application review, site inspection, survey examination, document preparation, execution and registration. To recover these costs a one-time administrative fee as detailed in PL 6.02.01 Administrative Fees for Public Land Transactions will be collected, in addition to annual rent.
To ensure that all rents for easements are based on the market value of the fee simple interest of the underlying land.
To charge an annual rent for all easements, with the annual rent determined by one of the following three methods:
land value per hectare ($) × area (ha) × impact on fee simple (50%) × % of market value (10%), subject to a minimum rent of $200.00
This method applies to the buffer area adjacent to in-water cage aquaculture facilities.
in the case of utility corridors, as set out in Policy PL 4.10.03 Utility Corridors on Public Land or
in the case of flooded lands, consult with Lands Business Unit, Integration Branch staff.
To charge a one-time administrative fee, rather than an annual rent, in only the below situations:
to protect the interest of an owner/user of an existing occupation for the sole reason that the underlying land is to be disposed of by the Crown to a third party
for a contamination attenuation zone associated with an existing MNRF or municipally operated waste disposal site (per PL 6.01.03 Disposition of Public Land at Less Than Market Value); or
for a water treatment plant intake or a sewage disposal pollution control plant outfall (per PL 6.01.03 Disposition of Public Land at Less Than Market Value).
To ensure that the province is compensated for any Crown land aggregate used by the grantee located near or on the easement area.
Permits as prescribed by the Aggregate Resources Act will be obtained by all easement holders and the appropriate fees and/or royalties will be collected.
To ensure the proper documentation to prepare and register an easement is obtained.
- Public Lands Act, Sections 21, 38(2)
- Aggregate Resources Act
- Municipal Act, Section 91
- PL 4.02.01 Application Review and Land Disposition Process
- PL 4.08.01 Waste Disposal Sites on Crown Land – Land Use Occupational Authority
- PL 4.10.03 Utility Corridors on Public Land
- PL 6.01.03 Disposition of Public Land at Less Than Market Value
- PL 6.02.01 Administrative Fees For Public Land Transactions
In this policy,
"dominant tenement" means the property which benefits from the easement
"easement" means a right or interest of use or passage of persons, vehicles and animals over another person’s owned or leased property created through an express registered grant of easement
"servient tenement" means the land over which the easement runs