In our last article, we examined financial encumbrances or obligations that might appear on your title. What about non-financial obligations? Here are some common examples.
An easement confers upon the owner of land the right to use the land by another or to prevent it from being used for certain purposes. In other words, it gives the owner of one property the right to use the property of another for a special purpose or to prevent it from being used for a certain purpose. In this context, the one property gets a benefit and the other property is affected or burdened by that right. For example, one property owner may give to an adjoining property owner the right to cross over his land.
Once registered, the easement (both the benefit and the burden) remains indefinitely or runs with the land, regardless of a change in ownership. Here are some other common rights:
i) right of passage by pedestrians or vehicles
ii) right of access
iii) right to park
iv) joint use of parking area
v) right of drainage.
A special form of easement involves a party wall agreement. Each owner of half a duplex share a common wall conferring rights or obligations on each other, which rights or obligations run with the land.
A utility right-of-way (UROW) is another form of easement which allows municipalities, gas, electrical and other utility providers, to create a utility corridor in order to install transmission lines over and under the land. The most common UROW is by a municipality where there is a continuous right-of-way required for utility lines over many different parcels of land. The UROW grants rights to the municipality to use the land for that purpose, including the right to enter upon the land in order to repair or maintain the utility.
Most municipalities prohibit construction or development over a UROW and a prudent owner would be wise to have knowledge as to the precise location of the UROW and obtain advice from the municipality as to the restrictions or limitations of any development over or on the UROW. For example, moveable sheds less than 10 square metres can be erected on a UROW but larger sheds or permanent structures cannot. What about cement pads or driveways?
Occasionally, a fence, driveway or retaining wall may encroach upon adjoining land and/or upon a municipal road, laneway or UROW. In these circumstances, an encroachment agreement may be required to be signed whereby the one property owner agrees to allow the encroachment to remain on his property, subject to certain terms and conditions. For example, the encroachment agreement may require that if the encroaching structure is destroyed or removed then any new structure would be required to be built within the boundaries of the lot.
Encroachment agreements are registered against the titles affected and run with the land. If the encroachment is on municipal land, the City of Medicine Hat has various policies regarding circumstances under which a structure will be allowed to continue to exist on public property and the circumstances or conditions upon which an encroachment agreement will be signed by the City. The City of Medicine Hat encroachment policy can be found on their website: www.medicinehat.ca and searching encroachment policy.
A prudent owner or purchaser should examine the title to property owned, purchased or being purchased, and reasonable inquiry should be made as to the nature and extent of any registrations that may appear on the title.
If there is any doubt about the nature of the registration, you would be well advised to seek the advice of your lawyer to ensure that the registration is a non-financial registration and does not adversely affect the saleability of your property.