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Rights-of-way, Easements, Squatters’ Rights and Restrictive Covenants

As the legal owner of property, you have the right to keep people from cutting across it or to stop people from just using it and taking it away from you, right?  Well, not exactly.  In certain limited circumstances, a person can lose control of their own property, or pieces of it, to people who are not owners of the property.  These situations fall into three categories:

An easement can be written permission to go across a piece of land.  This is used by the cable companies, telephone companies or gas companies who run cables and pipes under and over land.  Most property is subject to that type of easement, and they are necessary to make modern neighbourhoods work with all the conveniences.  Unwritten easements arise because someone makes use of a person’s property without their permission for a long time, and the owner of the property doesn’t stop them.  Hikers or snowmobilers may cut across the back of farm property for years, or people may cut a path across a vacant lot to get from their home to a shopping centre.  Homeowners often cross each other’s driveways or properties.  Crossing a neighbour’s land is particularly common in cottage country where access to a remote lake or riverfront property is only possible by crossing over another person’s land.  If the use lasts long enough, the person cutting across the property may get a “right-of-way” over the property.  Technically, it’s not that the person cutting across the property gets the right to cross it, it’s that the owner of the property loses the right to stop them from cutting across the property.  The owner’s rights to deny access to the property are prescribed.  Hence, these are often called “prescriptive rights.”  How long does the use of the property need to continue?  It’s generally between ten and twenty years, depending on the province.  How does a homeowner or property owner stop the unwanted crossing of their property?  Lock it, put up signs or a fence prohibiting access.  Use the trespass laws and take active steps to interrupt that ten to twenty-year period.  In other words, get in the way and interrupt the period of time and the use of the property, and the easement will not arise.

Adverse possession sounds so much more civilized than “squatters’ rights,” but it means the same thing.  Through adverse possession, someone can actually take control of a piece of another person’s land.  They may, for example, put their fence around a portion of another person’s land.  It is different from an easement, which arises because someone crosses land.  Adverse possession arises because someone is actually taking control and excluding the true owner from their property.  That’s why the possession is called “adverse.” 

Adverse possession is not available everywhere in Canada and, for example, it cannot be used to obtain possession of land owned by the Crown (the government).  So forget about trying to take over a part of a provincial park or a national park simply by putting up a fence.  There are also different ways each province and territory keeps track of registering title to property in Canada.  One system is called the Land Titles System and the other is called the Registry System.  Adverse possession is not possible against land that is covered by the Land Titles System.  However, it is possible to obtain adverse possession against land that is registered under the Registry System.  You need to check with a lawyer in your province if you are worried that someone is trying to take control of your property.

Restrictive covenants are restrictions on the use or ownership of property, and they are registered on the title.  A person may buy property and agree to abide by these restrictive terms.  Your lawyer will discover them at the time of purchase when searching title to the property on your behalf.  The lawyer may report to you that you can only paint your house a certain colour scheme to blend with the rest of the neighbourhood.  This is a fairly modest and typical restrictive covenant.  However, long ago some restrictive covenants dictated who, in terms of race or religion, could buy, or not buy, property in communities.  It is not that long ago that we saw restrictive covenants that prohibited “Negroes” or “Jews” or “Turks” from purchasing property in particular neighbourhoods.  The courts decided that these and other vile restrictions on ownership of property were contrary to Canadian public policy and struck them down, but lawyers still see these covenants when they search title.  They’re an ugly reminder of the past, but they’re unenforceable.

The bottom line is that your control of your land is not to be taken for granted.  Protect it from unwanted easements and, possibly, adverse possession.  Restrictive covenants may surface during an attempt to buy property, and it is up to you to decide whether you want to accept them.