Easements, Covenants, Takings

Easements

An easement allocates some right to use or right to forbearance from use

to someone other than the owner of the land to which the right pertains.
 
The function of easements is to make up for some deficiency in the land
benefitted by the easement

How are easements created?

 
Easements are created either by grant express or implied, reservation
express or implied or prescription (subject to legislative reform)
 

 
Examples of common easements?
 
Running with the land……

S. 15(1) of the Conveyancing and Law of Property Act (ONTARIO)

Provides that every conveyance of land, unless it is otherwise

specified, includes all physical aspects of the land as well as all
intangible aspects including easements

As with all legal interests in land, an easement binds the world and will
pass with the land (whether the purchaser has notice or not)

 
 
If we think a right to use land might be an easement we need to ask two
questions:

1. Whether the right as alleged has the characteristics of an easement

or something else (e.g. a mere personal licence or more, a right of
possession).

2. What is the scope of the easement? (Does it actually cover the

activity engaged in)? 

 
 4 Criteria
(cf. Ellenborough Park)
  
1) dominant and servient tenement;
 
• the DT need not be a freehold, could be a leasehold
 
• in gross easements, after some hesitation and discussion, came into being in
Ontario
• -> Art 39 (1) Land Titles Act Ontario -> "The land registrar may register
the owner of,
(a) any incorporeal hereditament of freehold tenure enjoyed in gross ...“

• Example of an easement in gross: right to fly kites on a particularly windy

field; right to land a chopper on someone’s land

• many public easements in gross expressly created by legislation (such as

easements relating to the use of land by public utilities, such as water,
sewage, and electricity);
• it is not necessary for Ontario Hydro to own contiguous land to enforce an
easement to build and maintain a power line
 
 
 Dominant and Servient
  
 2) The easement must accommodate the dominant tenement;
 
• this requirement links the burden on the ST to the benefit to the DT

*think of easements as rights incidental to blackacre, rather than rights

that a person has: the right must somehow be connected to blackacre*
 
• a right is an easement where it accommodates and serves the DT and is
reasonably necessary for the better enjoyment of the DT
 
 
How are we to make sense of this requirement?
• An easement in other words can be seen as making up for a deficiency
in the way that a DT owner would normally be able to use/enjoy the
land
• supplies an attribute of ownership normally associated with the
land loosely interpreted
• Cannot be unrelated to the normal use and enjoyment of the DT
 
 
 
3) dominant and servient owners must be different persons

Caution: Doctrine of merger!

 
4) a right over land cannot amount to an easement unless it is capable of
“forming subject matter of a grant”
 
Criteria –

• Not too vague or uncertain (a grant has to be precise, definable use-right)

• Not too broad so as to be inconsistent with the rights of the owner of the ST;

and

• for real utility or benefit of the DT, not a mere right of recreation
 
 Nelson v 1153696 Alberta Ltd
2011 ABCA 203, 2011 Carswell Alta 1093, Ziff at 760

• Facts:
• Pl owns land and operates Shalom Park on it
• Only access is a road over land held by Def
• Road constructed by neighbor (lessee!) equally dependent on it for access ->
tolerated by owner Dale
• Pl uses and contributes to maintenance costs for road
• Previous Owner of Def’s lot Dale knew of road and use by Pl, but refused
explicit grant of easement

• Issue: Does Pl hold an implied easement granting him right of way?

• (other question on appeal: was the road public?)

• Reasoning: (dissent in appeal on the issue of implied easement)

• No express creation of easement, as no agreement reached
 Nelson v 1153696 Alberta Ltd ct‘d

• Implied easement? -> here: as easement of necessity

• Can implied easements exist under a Torrens system? -> “hidden
landmine”?
• Right of way “absolutely necessary” and no “mere convenience”?
• Can exist if dt and st have once been held as common property
• Can exist if sold land would otherwise be inaccessible
• Can exist if owner sells a part of land and reserves another which would be
inaccessible except for passing over sold portion

• Here: absolutely necessary for accessibility of Nelson lands?

• Alternative access via river?

• Necessity existed at the time of the severance (note: not grant!)

• Left Open: Equitable easement by way of proprietary estoppel?

• Applicability of clean hands-doctrine?
• Equitable easement in a Torrens system as binding on bfpv wn?
 Laurie v Winch
[1953] 1 SCR 49, 1952 CarswellOnt 118, Ziff at 769

Facts:
• Smith owned Plan 320 (a farm) and acquired Lot 17, which was
burdened by an easement “for all purposes and for all time” that
Shepherd had reserved in favor of lots 18, 19 and 33.
• 1925: After Smith acquired Lot 17, he obtained an easement over lot
33: “a perpetual right of way over lot 33”
• For some time before this easement was created, there had been a
farm lane 50 feet wide, in use, over lot 33 to lot 17 and through to lake
shore road. It was used to get to and from the farm buildings on plan
320.
• The respondent bought the Smith farm (there was an intermediate
owner) and lot 17, plus the right of way over lot 33.

• Appellants want to restrain the respondents and other owners of plots

on Plan 320 from using lot 33 OR from using it anymore than was used
before 1945

Issue: Can use of lot 33 be restricted as desired?

 
Lake shore Road

lot
17

Road
Location of old farm road

33

Farm turned
subdivision
 Laurie v Winch ct‘d
Reasoning:
What is the DT?
• DT was the farm, not lot 17 (even though the easement was acquired right after
lot 17 acquired
• Lot 17 was a sterile lot, not the DT
• Lot did not need lot 33 to get to the side road, b/c it had direct access already
• construe the meaning of the grant here to give the DT access to lake shore

What about the nature and extent of the right?

• Changes: plan 320 no longer a farm, and it had been subdivided (more people
then claiming a right of way)
• This means a heavier burden on the ST

COURT held:
• the parties to the grant did not expect that the DT remain a farm, possibility even
then that the farm would be subdivided, no circumstances which would restrict
the meaning of an otherwise unrestricted grant of an easement
• Finally, easement for the benefit of the DT benefits each and every part of the DT
unless intended otherwise, therefore all owners of part of the DT get a right of
way
 Malden Farms Ltd v Nicholson
[1956] OR 415, 1956 CarswellOnt 107 (CA), Ziff at 774
• Facts:
• Pl/Resp owns parcel primarily used for duck hunting
• Pl(!) predecessors in title obtained right of way, incl right to maintain gate at each end
• Land sold to predecessors in title of Def granting right of way over right of way(!)
• No cession of land by Pl, even after shifting location of part of initial right of way

• Pl complains about defendant:

• Tearing down entrance gate
• Using some parts as picknick-site
• Making excessive use of right of way

• Issue: Does the right of way held by the Def cover the uses Pl complains about? -> scope of the
easement?

• Reasoning:
• Despite already markedly increased use by previous easement holder
• Held: all signaled uses to be ceased -> “unauthorized enlargement and alteration in the
character, nature and extent of the easement”
 R v Tener
[1985] 1 SCR 533, 1985 CarswellBC 7, Ziff at 778

Definition of profit à prendre

• Right to enter take sth. off the land of another, e.g. mineral, oil
• No dominant tenement necessary
• Give a claim to enter and extract from soil
• Holder of profit à prendre acquires whatever is extracted from soil

• As easements: subject to doctrine of merger

 Bank of Montreal v Dynex Petroleum Ltd
[2002] 1 SCR 146, 2002 Carswell Alta 54, Ziff at 779
Facts:
• Applt is secured creditor of Resp (in bankruptcy)
• Resp held working interest with overriding royalties
• Holders of royalties claim priority over Applt‘s security interests

Issue: Can an overriding royalty be an interest in land? -> can an interest in land also
arise from incorporeal hereditament (working interest)?

Reasoning:
• Common law rules v practices of oil and gas industry and court opinions pointing in
both directions
• Usefulness of distinguishing corporeal and incorporeal hereditaments in general and
in this specific context?
• Overriding royalty analogous to lessor’s royalty (which is a recognized interest in
land), but interests of parties also to be taken into account: creation of interest in
land desired?
• No policy reasons to maintain the common law rule…
• Held: overriding royalty interest in land + can be opposed to Applt’s security interests
 Restrictive Covenants
 
Say X wants to prevent neighbours from doing obnoxious things. What can
X do?

• Rely on NUISANCE or ZONING

• If you are conveying the burdened land, impose a condition subsequent

• Contract

• Retain ownership of a buffer area

• If you sell off the buffer area, you run the risk of being exposed to
the obnoxious activities of your neighbour.
•  
• OR…restrictive covenant: an Equity which attaches to the property and
binds anyone taking with notice of it
Summary of the equitable principles:
 
-the burden will pass to a succeeding owner of the burdened land if:

1. the covenant is restrictive (or negative),

2. two plots of land are concerned, one bearing burden, the other
receiving benefit (like a dominant tenement, the party that benefits
must retain land that is benefitted by the covenant),

3. the purchaser takes with notice or constructive notice (i.e. is not a

bona fide purchaser for value without notice),

4. the convenant touches and concerns the land, and

5. there was an intention that the convenant would bind subsequent

purchasers
  Tulk v Moxhay
(1848), 2 Ph 774, 41 ER 1143 (Ch), Ziff at 794
 
Facts:
 
• Tulk had fee simple in a garden and several houses;  
• he sold the garden to Elms, along with a covenant: Elms would
maintain gardens and would not build
• Tulk ‘s tenants (in neighbouring houses) have a right of admission to
gardens on payment of rent.
• Elms the sold the garden to Moxhay;
• Elms did not attach any covenant, but M had notice of covenant in deed
from T to E
• NOW: M wants to cut down the trees and build on the property
 
Issue: Can Tulk enforce the covenant against M?
 Tulk v Moxhay ct‘d

Reasoning
• when an owner attaches equity to a property, subsequent owner with
notice cannot stand different from the vendor
• Court: not a question of “running with land” here (!) -> it evidently does

• Held: the covenant to maintain the garden uncovered with any building
can be enforced by an injunction against purchaser who bought with
notice
• (i.e. the covenant will run with the land, because an “equity” has been
attached to the land)
 Common Development Schemes

alternative to planning law?

• voluntary local associations determining restrictions on use,

• finely tailored to the needs of a local community
• designed to enhance the economic value of the properties collectively
burdened

section 119 of Land Titles Act:

(a)the covenantor must be the owner of the land to be burdened by the
covenant;
(b)the covenantee must be a person other than the covenantor;
(c)the covenantee must own land to be benefitted by the covenant and
that land must be mentioned in the covenant; and
(d)the covenantor must sign the application to assume the burden of the
covenant.

NOTE: restrictive covenant must also be otherwise legally binding

registration does not validate an otherwise void restrictive covenant
(Section 119 (6)).
 Berry v Indian Park Association
1999 CarswellOnt 1248, 174 DLR (4th) 511 (CA), Ziff at 804
Facts:
•  Phases I and II: Kitwee and Modco are developers, signed an
agreement w association expressly establishing a CDS, developing
rustic, ski chalets, essentially off the grid.
• Assoc: service provision, water, sewage, land for parking lot, rec area
• Kitwee and Modco: agreed to impose RC on purchasers, RC contained in
bylaws and registered against title. For eg: no fence except around
pools, no trees cut down unless dead or diseased, no motor vehicles
other than snowmobiles and motorcycles
• Phase III in 1988: agreement with Monica to amalgamate with
Sugarbush community to develop modern, permanent residents, that
had sewage and garbage provided by local municipality.
• More onerous bylaws adopted
• Contract betw Monica and Association: Monica agreed on behalf of
successors to abide by bylaws,
• Contract between Monica and purchasers of Phase III: become
members and abide by bylaws
• RC not in title to Phase III lots.
• Phase III: resent paying for services they don’t need
 
 Berry v Indian Park Association ct‘d
Issue: Are phase III owners bound by the restrictive covenants in the bylaws so
that they have to pay the maintenance fees?

Reasoning:
• No application of Tulk v Moxhay-principles
• Equitable exception to privity of contract in building schemes?
• General benefit warranting imposition on all owners in common
• Requirements:
• Derivation of title from common vendor
• Consistent development scheme established prior to sale
• Restrictions intended to benefit all lots to be sold
• Purchase of lots conscious of fact that restrictions benefit all other
lots
• No building scheme established over phase III (also since no registration of
restrictions)
• Requirements for building schemes not fulfilled
• Bylaws not binding on phase III-owners (ultra vires)
 Amberwood Investments Ltd v Durham Condominium Corp no 123
(2002) 211 DLR (4th) 1, 2002 CarswellOnt 850 (CA), Ziff at 818
• Facts:
• Appl and Respdt own to adjoining parcels of land, part of a condominium
development by WDHC (developer and previous owner of both parcels)
• Developer intended sharing of recreational facilities between both parcels
• Reciprocal Agreement provides for cost-sharing and(!) for provisions of Agreement
to run with land

• Issue: Does the Appl have to pay share of the interim costs? -> Does the Reciprocal
Agreement bind Appl as successor in title?

• Reasoning:
• Majority: no binding force
• -> Not as a restrictive covenant -> positive obligations cannot run with land under
current law (despite discussions about reform) -> would need legislative changes
• Applicable statutory exception to the impossibility of positive covenants? -> (-)
• Other principles constituting obligation to pay?
• Doctrine of benefit and burden? (Halsall v Brizell) -> bot applicable, not even part of
English law (yet)
• No conditional grant of easement
 Expropriation Powers Comparison with USA
 In the US:
 
The 5th Amendment provides that there, private property shall not be taken
for public use without just compensation

this limit on state power is applied to the states through the 14th
amendment
 
When can the government intervene?
In the US, strictly limited: only for a public purpose
 
What constitutes a taking?
US:
1) outright expropriation
transfer of a property right from private citizen to the state
the govt takes a right to use another’s property (something that
ordinarily would be the subject matter of an easement)
the govt takes the property outright (takes fee simple)
the govt condemns a future interest
eg use of the private citizen’s land or air space
2) Far trickier: regulatory takings
 
 Mariner Real Estate Ltd v Nova Scotia (AG)
68 LCR 1, 1999 Carswell NS 254 (CA), Ziff at 149
• Facts:
• Nova Scotia Beaches Act regulates use of public and(!) private beaches + requires
ministerial authorization for any development
• Resp‘s application for authorization to erect residential building on their beach
• refused as “in the best interests of public and property owners”

• Issue: Is the denial of the authorization under Beaches Act a de facto expropriation?

• Reasoning:
• Ltd scope of de facto expropriation in Canadian law
• Only through lawful actions
• Compensation only when based on legislation (here via Expropriation Act)
• Tradition of vigorous land use regulation in Canada + modern Canada as benchmark to
assess regulation
• Actual application of regulation, not mere possibility is relevant + substantive, not
merely formal assessment
• Here: no de facto expropriation
 Mariner Real Estate Ltd v Nova Scotia (AG) ct‘d

• Under Expropriation Act:

• Taking requires removal of almost all private uses -> rights of owners
different from ownership!
• Loss of economic value? -> decline in value different from loss of interest
(note: different from US-approach!)

• BUT: decline in value can indicate loss of interest

• Preclusion of erecting residential building? -> no loss of virtually all interests
in land

• No acquisition of land by public authorities

 Canadian Pacific Railway Company v City of Vancouver
[2006] 1 SCR 277, 2006 SCC 5, Ziff at 157
• Facts:
• CPR owns Arbutus corridor in downtown Vancouver
• After cession of railway operations, CPR unsuccessfully attempts to commercially
develop corridor
• Municipal bylaw passed that regulates permissible uses (incl railway (if also
maintenance of railway is disputed) but no commercial development)

• Issue: Does the bylaw constitute a compensable de facto expropriation of CPR?

• Reasoning:
• Test for de facto expropriation:
• Acquisition of beneficial interest in or flowing from (!) property
• Here: no acquisition by City of Vancouver
• Removal of all reasonable uses, not the case here

• Therefore: no compensation under BC Expropriation Act