Ahhh, the world of Easements. We've heard of them and know about them in general terms but what if you're looking at a property that has one or needs to have one.
This week, I was working with a great couple on the purchase of an acreage. When the survey was done, it was discovered that the home on this property was on the acreage they were buying but the driveway crossed the property line and is on the neighboring acreage! Not good news to say the least as how were they going to access their acreage!
In order to do a boundary re-alignment to have that portion of the land become part of what they were buying, an application for subdivision needed to be made. This is in the Regional District of the North Okanagan so the existing structure needed to meet all of the zoning setbacks from the creek, center line of highway and side yards. The historical cabin would not be able to meet those requirements so a boundary re-alignment was out of the question.
The option then was to place an Easement on the neighboring property. In this case, both proeprties were owned by the same person, making this quite simple.
An Easement is best described as the right to use the real property of another, without possessing it.
The person granting the easement, in this case the neighboring property is called the Servient Tenement and the land benefiting, the land my clients were buying, is called the Dominant Tenement.
It is the land that must benefit from the easement, not merely the land-owner. If it were the land-owner alone who benefits, then the right created by the easement is not an interest in land.
As I understand it, the easement has to be very clearly written and usually is accompanied by a survey of the easement area. In this case, the Land Titles Office will accept a detailed description of the easement area referenced from the Crown survey posts on the property.
An easement can outline how the dominant land benefits and can restrict the use by the servient land. In this case, the easement outlines what my clients can use the land for and that the land granting the easement won't construct or erect any structure within the easement area nor interfere with my client's right granted in the easement.
A lawyer can draft the easement and file it in the Land Titles Office but so can a Notary, which was the case here with my clients.
Hope this helps clear up what easements are about and if you have any questions, please send them along and I will be sure to find an answer!