Most people know that they are not entitled to access property they do not own unless they have permission from the property owner, as to do otherwise would constitute trespass. However, fewer people know the concept of easements and how they apply in the context of property ownership. 

Generally speaking, an easement is a legal document that grants one party the right to access a certain specified portion of property owned by another party for a specific purpose. Easements are common in cottage living, wherein one or more property owners may require access through one or more of another property owner’s properties to access their own parcel of land. A party granted an easement may also enjoy certain ancillary rights, such as the right to erect structures on the land over which the easement was granted, and responsibilities, such as liability for any damage suffered about the easement itself or the land over which it applies. 

This blog discusses a recent BC court decision involving a dispute about constructing a set of stairs on land over which an easement had been granted.

Neighbour Erects Staircase on Land Over Which They Have Easement

The recent decision of the BC Supreme Court in Armstrong v District of North Saanich involved a dispute over an easement and construction of stairs. The respondents purchased their waterfront residential property in BC in 2018. At the time of the purchase, an easement was registered on the title to the property they had purchased such that the owners of the neighbouring property were entitled to access a 25-metre-long strip of land that ran along the western edge of their property line to gain access or egress from their own property, on foot. The easement arose from a deal made between the petitioners and the previous owners of the respondents’ property, who had been friends and had entered into the easement arrangement in exchange for payment of $1.

The petitioners in the case were the beneficial owners of the easement over property owned by the neighbours, the respondents to this application. As beneficiaries of the easement, the petitioners constructed a set of stairs on the respondents’ property to facilitate beach access from the property. The petitioners did not seek the respondents’ permission before they constructed the stairs and did not acquire the requisite permits from the city before they undertook their construction efforts because the petitioners had failed to request permission from the respondents before building a set of stairs on the respondents’ own property, so the respondents sought an order for removal of the stairs.

Defining and Assessing the Validity of Easements

As noted by the court in this case, easements constitute legal documents and are to be interpreted by the principles applicable to contractual documents. As such, the court must review the entire easement document and surrounding circumstances and assign words to their ordinary grammatical meaning to determine the parties’ true intentions concerning the agreement.

The language used in a given easement is central to its interpretation unless the language employed is ambiguous or is directly countered or otherwise disproven by the surrounding circumstances and actions of the parties such that it is not reasonable to conclude that the parties intended such an interpretation to result. 

Importantly, easements do not grant a dominant tenant exclusive or unrestricted use of a piece of land but rather engender “two sets of rights that co-exist over the easement property.” Therefore, a property owner is entitled to assert their rights over an easement to the extent that such assertion does not interfere with the rights granted. Whether the actions of a beneficial owner of an easement will constitute substantial interference with the residual property rights retained by the property owner over which the easement is granted depends upon the circumstances. 

What Ancillary Rights are Associated with Easements?

It is also significant that all easements are considered to include granting any ancillary right reasonably necessary to the exercise or enjoyment of the easement itself. Consideration of whether a particular ancillary right can be considered reasonably necessary is dependent on the circumstances of each case and necessitates proof that the ancillary right is not just convenient or reasonable but that it is necessary for the use and enjoyment of the easement itself. 

The approach to assessing ancillary rights is twofold. First, the court interprets the wording of the specific easement in the context of the time at which the easement was granted and then considers whether any ancillary rights that are not expressly included in the easement are reasonably necessary for the party to exercise the rights afforded them under the easement.

The Purpose of the Easement in this Case

In this case, the court defined the easement’s purpose as the provision of a land corridor from the petitioners’ property to the beach and the waterfront located below the respondents’ property, as this is the only interpretation that made sense in light of the geography of the easement. In this finding, the court rejected the respondents’ contention that the easement’s purpose was merely to provide land access between the two properties, as the easement did not discuss beach or water access. Despite its absence from the easement itself, the court was satisfied that beach access was the only interpretation that made sense in the context of the location of the properties in question. 

Does the Easement Include an Ancillary Right to Construct Stairs?

Having determined that the easement granted to the petitioners, in this case, included a right to access the beach from the respondents’ property, the court then considered the respondents’ argument that the easement did not include an ancillary right to construct stairs on the property over which the easement was granted.

To that end, the court considered when the stairs were necessary for the easement’s use and enjoyment so that the easement’s purpose – to facilitate easement beach access for the petitioners over the respondents’ property – could be fulfilled. After noting the steepness of the slope where the stairs were located and that the incline rendered safe passage over the easement impossible and/or unsafe without the use of stairs, the court was satisfied that stairs were required to satisfy the purpose of the easement in allowing the petitioners beach access over the respondents’ land. The court arrived at this conclusion after reviewing multiple engineering and arborist reports that described the topography of the area in question and the efforts that would be required to be undertaken to access the beach without stairs.

The court further found that the stairs built by the petitioners were not unnecessarily elaborate, served their purpose, and had been properly constructed. In these circumstances, there was no reason to order their removal.

As a result, the court was satisfied that the construction and placement of the stairs constituted an ancillary right that attached itself to the easement and was reasonably necessary for the exercise and enjoyment of that easement. 

What About Liability for the Staircase?

The respondents raised the question of liability about the use of the stairs. Specifically, they alleged that allowing the petitioners to retain their stairs would subject the respondents to unnecessary risk of liability should someone become injured when using the stairs. The court noted that it is the beneficiary of an easement who bears liability for any structure they build on a property over which they have an easement, as a result of which it would be the petitioners, and not the respondents, who would be responsible in negligence should any party suffer injury or damage attributable to the stairs in question.

Vancouver Real Estate Litigation Lawyers Advising Clients On Their Easement Issues

Navigating easements can be complex. Whether you own property burdened by an easement or benefit from one, it’s crucial to have expert legal guidance to protect your rights.

Meridian Law Group, based in downtown Vancouver, BC, provides experienced and insightful legal counsel to clients across the province. Our real estate litigation lawyers understand the intricacies of easement law and can assist you with all aspects of easement disputes. Contact us today for a confidential consultation. You can reach us online or by phone at (604) 687-2277.