An easement is a type of property right which gives a landowner the right to use a neighbour’s property for a particular purpose, such as accessing their property. Easements are a potential source of a real estate dispute as they benefit one piece of land at the expense of the land containing the easement.

This article provides a review of easements in their different forms. This post also considers a recent decision of the Court of Appeal for British Columbia in which the owner of a strata lot claimed to have a right to cross another lot owner’s deck to access a stairway.

What is an easement?

An easement is a property right that grants a right of use or access over land. There are various types of access rights under British Columbia law, including rights of access acquired by public authorities or easements granted over Crown land. This article will focus on assessments granted privately between property owners.

An easement that grants access to land is called the servient tenement. The neighbouring property which benefits from the easement is called the dominant tenement. It is a property right for a specific purpose, but it does not grant exclusive possession of the land.

What are the different forms of easement?

Easements may be registered or unregistered. Under the Land Title Act, an endorsement of the easement is registered against the title of the dominant tenement. When this land is transferred (for example, when it is sold), the Land Title Act states that the benefit of the easement will also be transferred.

It is possible to have an easement that is not registered on the land title system. For example, the parties may agree to terms of access in the form of an easement. In some circumstances, a court may even be prepared to grant an easement under the doctrine of proprietary estoppel. This may occur where the landowner claiming the existence of the easement was encouraged to act to its detriment by the other landowner in circumstances where it is unjust for the latter to insist on its legal rights (that is, insist the other owner is not entitled to use the easement area).

Proving an easement by estoppel can be difficult and matters may be complicated depending on the type of property involved, such as strata title, as indicated in the decision considered below.

Strata owner sought easement to cross deck to access backyard

In Stratton v Richter, the owner of a strata lot in a three-lot development in Vancouver, Ms. Richter, claimed that she had a right to cross the deck on the second floor of the building to reach an exterior stairway. A door from her kitchen opened onto the deck and the stairs led to the ground level, providing one means of access to her part of the backyard and a garage.

Under the Strata Property Act, certain areas forming part of individual lots are the private property of individual owners, but the remainder of the development is usually common property owned by all lot owners. However, some common property may be designated for the exclusive use of one or more of the lots.

According to the relevant strata plan, the deck was common property but was limited to the exclusive use of the strata lot owned by Mr. Stratton. He sought to prohibit Ms. Richter from crossing the deck.

Ms. Richter claimed that the previous owner of Mr. Stratton’s strata lot said that she had a right to walk across the deck to access the stairway. She sought an easement to facilitate her access.

There was no existing unregistered easement

Justice Groberman of the Court of Appeal found nothing in the evidence of Ms. Richter or the prior owner of Mr. Stratton’s lot to suggest that the promised access constituted an easement. The assurance provided by the previous owner was that she would simply allow access – this was a licence, but not an interest in the land.

The Strata Property Act sets out how rights in the land are created and transferred. The deck was common property; therefore, the prior owner did not have the ability to grant an easement by herself.

Even if the prior owner had created an unregistered easement, it would not apply to the new owner, Mr. Stratton, unless he participated in fraud (under section 29(2) of the Land Title Act). Simply knowing of the claim does not meet this threshold and there was no evidence of fraudulent behaviour.

Court declined to grant an easement under the doctrine of proprietary estoppel

Justice Groberman then considered whether Ms. Richter was entitled to an easement under the doctrine of proprietary estoppel. His Honour thought that such a remedy conflicted with the Strata Property Act rules governing property transfer. The legislation also contained a specific route for remedying an unfair action by the strata corporation. As such, his Honour doubted that the remedy sought by Ms. Richter could be granted.

In any event, his Honour decided that she had not proved the requirements for proprietary estoppel. There was no basis for finding that the promise of the previous owner applied to future owners. Even if it did, relying on such a promise was not reasonable, given that the deck was designated common property. Finally, the promise of the previous owner was sought to be enforced on the later owner, who did not make the representation or continue it.

The Court refused to grant Ms. Richter an easement.

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