Do Good Easements Make Good Neighbours?

In Mending Wall, the American poet Robert Frost famously asked: Do good fences make good neighbours? In the poem, two neighbours are walking in tandem on either side of their fence, laboriously re-stacking fallen stones. The narrator questions this customary practice because their lands respectively contain apple and pine tree orchards. In response, the neighbour reiterates the adage: good fences make good neighbours. Here, Frost hints at the complexity of property rights. But, let’s suppose the fence was intruding two meters into the narrator’s property. What then?

Often, properties are subject to easements which—broadly stated—grant the right of use, enjoyment, and/or access to others. There are two general categories of easements: public and private. First, public authorities can acquire by expropriation an easement-like right of access for the maintenance of public services and utilities, what is known as a statutory right of way. Once established, these rights-of-way may limit where you can build permanent structures on your property (e.g. a patio, pool, carport, etc.).  For example, Frost’s narrator may have powerlines over a portion of his property; this could restrict the size of his orchard to ensure the utility company’s access.

Second, easements may be granted privately between property owners. These agreements run with the land, insofar as the right-of-access (or otherwise) is registered against the granting land (the servient tenement). Consequently, the easement will persist even when the initial property owners have sold their lands. The benefiting lands (the dominate tenement) carries the right for each subsequent owner’s or inhabitant’s enjoyment. For example, the narrator’s neighbour may be so content with fence mending because he inherited lands that benefit from an easement; whereas the narrator questions the custom because he has inherited lands that grant this benefit.

There are three elements required for an easement to be valid. First, there must be servient and dominate tenements. Private easements cannot exist in gross (“thin air”). These lands need not be contiguous, but they must be close enough to allow the one to benefit the other. Second, because easements impose a burden on the servient tenement, courts will not enforce one unless it improves the dominate land somehow. Third, an easement must be capable of forming the content of a grant. In other words, easements may only concern property rights, such as access to or use of lands. It cannot grant the right to a spectacular view, for instance. Nor can an easement impose a positive obligation on the servient tenement-holder. In Frost’s Mending Wall these three elements appear to be satisfied. Does that mean the narrator’s neighbour can fence the easement lands? Maybe.

Easements grant a property right, not a type of ownership. As such, they never grant the benefiting landowner exclusive possession of the subject lands. Where sufficient access remains for the servient tenement-holder, a dominant tenement-holder may fence easement property—provided it contributes to the easement’s purpose. In Beyer v. Clarke, for example, the B.C. Supreme Court permitted such a fence because it improved the land’s safety for the dominant-tenement holder and their dog. The easement at issue granted a general right of use and enjoyment. To that end, the dominant tenement-holder constructed an ornate garden. Because the fence contained a gate which allowed garden access to the servient tenement-holder and because the fence contributed to the easement’s general purpose, the court refused to order its removal. From this precedent, the narrator’s neighbour may fence the easement lands, provided it contains a gate and contributes to the easement’s purpose.

How do easements end? First, the tenement-holders may agree to remove the easement from the land titles registry. Second, the benefitting landowner may abandon the easement. This requires more than mere disuse. Rather, it requires an action which clearly demonstrates their intention to abandon the right. They may, for example, fence over their access route. And lastly, the easement’s purpose may be rendered obsolete.  An easement allowing for septic truck access, for instance, may become obsolete when a city installs sewage lines.

As Robert Frost’s Mending Wall suggests, property law is complex. Maintaining good relations with your neighbour often requires more than a fence. If your property is subject to an easement and you are hoping to make changes, call our office for more information about your rights and your property’s restrictions.