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Easements and restrictive covenants

Region: Ontario Answer # 394

Even though you are the legal owner of a property, other people may have legal rights to access your property, or there may be certain restrictions on what you can do with your property.

Rights and privileges over your property given to others are usually called easements or rights-of-way. Restrictions on your land are called restrictive covenants. Because these rights and restrictions are attached to the land, and not to the owner of the land, they continue to exist over your property even though the property has new ownership.

 

Easements or rights-of-way

An easement is the right of use over the property of another. Easements or rights-of-way can arise formally by a written agreement, or they can arise informally by permitted use. There are also different types of easements.

Common easements include rights given to utilities for maintenance of water, sanitary, and storm sewer lines, and rights given to phone companies for telephone line maintenance.

Another type of easement, referred to as an easement to re-enter, usually exists when a subdivision is newly built. This type of easement allows the developer entry for the purpose of completing outstanding work, such as paving the streets or installing storm sewers.

Another common easement is a maintenance easement. This often occurs where properties are built so closely together that an owner of one property is permitted access to an adjoining property for the purpose of maintaining his or her home, such as cleaning the eaves or having the windows washed. Formal easements over property are normally registered on title at the land registry office.

Sometimes, a right-of-way can arise from permitted use. This can be the case, for example, where access is required to a well, or to an otherwise landlocked property.

 

Restrictive covenants

A restrictive covenant is a contract which places limitations on what can be done on your property. Developers of new subdivisions use them to ensure that the land is developed with uniformity. For example, a subdivision may have a restrictive covenant preventing the storage of any boats or trucks in the driveways, or prohibiting the installment of satellite dishes or clothes lines. Some restrictive covenants are not legally binding, particularly if they are considered arbitrary or contrary to public interest. Under the Ontario Land Titles Act, restrictive covenants are set to automatically expiry after 40 years. This is enforceable unless, however, the covenant itself gives a different end date to the covenant.

 

Restrictive covenants are not as much of a concern with the purchase of a resale home, as they may have expired, or might not be enforceable because the development of the subdivision has been completed. Every property has its own set of rights and obligations. A real estate lawyer can help you understand any easements or restrictive covenants affecting your property.

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