Demystifying easements and rights-of-way

An easement is a right given to a property (servient land) belonging to someone else in favour of a person or another property (dominant land). The owner or author of the easement must name the type of restriction provided, as well as the beneficiary.

The types of easements

A real servitude

A servitude can be real or personal. In the first case, the real servitude is tied to the dominant land. It therefore subsists regardless of the change in ownership of the property.

Practically speaking, it could look like this:

Florence’s cottage is located between the public road and the land on which Olivier’s house is built. Oliver’s house is contained within Florence’s property. Florence therefore agrees to a servitude in favour of Olivier’s residence so that he and his family can reach the road.

She will also have to refrain from building anything or planting trees that could block the way. In the event that Olivier wishes to sell his property, the servitude will subsist if it has been duly recorded with the Registre foncier. The future owners will therefore also be able to take advantage of it.  

Personal servitude

With a personal servitude, the servient land is consented to a designated person for a limited time.

Let’s go back to our example:

Florence can agree to a servitude not in favour of Olivier’s property, but in favour of Olivier himself. If Florence registers this servitude with the Registre foncier, Olivier will keep his right-of-way, even if Florence sells her house. Indeed, the right is directly attached to Oliver, regardless of who the cottage separating him from the public road belongs to.

Thinking of buying a cottage? Here’s how to make an enlightened choice.

Creating an easement

To exist, an easement can be planned by a contract or a will. It can also be created when the owner of the property (that is, the servient land) creates a material arrangement between two pieces of land to allow the owner of the dominant land to pass. Lastly, certain easements come into effect by law, namely through judgments on public services such as Hydro-Québec.

Terminating an easement

Many situations are accounted for by law, such as:

• If Florence purchases Olivier’s property, the servitude no longer has any reason to exist. Indeed, the owner of the servient land and the dominant land are one and the same.
• Olivier can expressly renounce his right-of-way. This can be motivated by the creation of a new road that allows him to avoid using Florence’s.
• It may also be that the easement was accompanied by a term set out between Florence and Olivier.  
• If Olivier does not use his right-of-way for 10 years, the easement is automatically terminated.

Our recommendations

The notary is the best person to guide you through the legal and financial complexities of easements. They can namely guide you in the choice between a real or personal servitude.  

To find out more about the roles of a notary, read this article.

The existence or not of an easement can have a considerable impact on a property’s market value. Regardless of the different types of easements that can affect a property, your Multi-Prêts broker can help you determine the most appropriate type of loan.