LEGAL TERMS MADE SIMPLE: EASEMENTS & COVENANTS

Imagine this: you've just purchased your dream home. You're already planning a new fence, a backyard pool, or maybe even a detached garage. Then you discover someone else has the legal right to use part of your property or that there are rules limiting what you can build.

Surprised?

Many property owners don't realize that buying land also means accepting certain legal rights and responsibilities attached to it. Some of these continue to exist even after the property changes ownership.

Two of the most common, and often misunderstood, property law terms are easements and covenants. While they may sound like complex legal jargon, these concepts are relatively straightforward once broken down.

Whether you’re purchasing a home, planning renovations, or simply curious about your property rights, understanding easements and covenants can help you make informed decisions and avoid unexpected surprises.

What is an Easement?

An easement is a legal right that allows one person or organization to use part of another person's property for a specific purpose without owning the land. Think of it as a legal "right to use."

Picture this: you own a beautiful cottage on the lake. One morning you notice your neighbour walking across your property to get to the waterfront.

Your first thought might be: "Can they really do that?" The answer is... maybe.

If your neighbour has a registered right of way, or another legally recognized easement, they may have the legal right to continue using that path even though you own the land.

That's because an easement is generally attached to the property, not the person. If either property is sold, the easement usually continues to exist.

Where Might You Find Easements?

You may have an easement on your property without even realizing it.

Some common examples include:

• A shared driveway used by neighbouring properties.

• A right of way allowing access to a road, parking area, or waterfront.

• Utility easements allowing hydro, gas, water, sewer, or telecommunications companies to install and maintain infrastructure.

• Drainage easements that allow water to flow through designated areas to help prevent flooding.

Why Should You Care?

Imagine you've saved for years to build your dream backyard. You've hired a contractor, picked out the perfect pool, and construction is about to begin. Then you discover a utility easement runs directly through the middle of the yard.

Since utility companies may require access to underground infrastructure, building over that easement may not be possible. A quick review of your property's title before starting renovations could save you time, money, and frustration.

What is a Covenant?

A covenant is a legal promise that places rules or obligations on how a property can or cannot be used.

Like easements, covenants are generally attached to the land itself rather than the individual owner. As a result, future owners of the property may also be required to follow the same rules.

Picture this: You've finally bought your home. You decide you'd like to build a second detached garage or start a small business from your house. Before making plans, you discover there's a covenant on the property restricting exactly those types of changes. Even though you own the property, the covenant may limit what you're allowed to do.

Types of Covenants:

Restrictive covenant

A restrictive covenant tells a property owner what they cannot do.

Examples include:

• Building above a certain height.

• Operating a commercial business from a residential property.

• Constructing additional buildings without meeting certain requirements.

• Using the property for anything other than residential purposes.

These restrictions often help preserve neighbourhood character and protect property values.

Positive covenant

Positive covenants require a property owner to do something. Sometimes, that also means contributing financially.

For example, you may be required to:

• help maintain a shared private road or laneway;

• contribute to the cost of maintaining a shared fence or retaining wall; or

• pay toward the upkeep of common areas within a private community.

In other words, a positive covenant doesn't just create a rule—it can also create an ongoing responsibility.

Easements vs. Covenants

It's easy to confuse the two, but here's a simple way to remember the difference. An easement gives someone a right. A covenant creates a rule.

If someone has the legal right to cross your property, that's likely an easement. If your property has rules about what you can build, that's likely a covenant.

Why Does This Matter?

You might never think about easements or covenants until you're buying a property or planning renovations.

But these legal rights and obligations can affect:

• what you can build;

• whether someone else can legally access your property;

• who is responsible for maintaining shared areas; and

• your future plans for the property.

Because many easements and covenants remain attached to the land, they often continue to affect future owners as well.

How Do You Know if Your Property Is Affected?

The easiest place to start is with a title search.

During a real estate transaction, your lawyer reviews the property's title to identify registered interests that could affect your ownership or future plans.

However, not every interest affecting land is registered. In some circumstances, rights affecting a property may exist even if they do not appear on title. This is one reason purchasing property involves more than simply reviewing title documents. Your lawyer will also conduct additional due diligence to help identify other issues that may affect the property.

Final Thought

Property ownership involves much more than receiving the keys to your new home. Understanding easements and covenants can help you avoid surprises, make informed decisions, and better understand your rights and responsibilities as a property owner.

More information?  We’re here to help – realestate@wardlegal.ca 

This WARDS LAWYERS ^PC publication is for general information only. It is not legal advice, nor is it intended to be. Specific or more information may be necessary before advice could be provided for your particular circumstances.