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CASUAL LEGAL: Access Denied: The Distinction between Easements and Licences

July 22, 2020

Attention: AMSC Members – Please distribute to all appropriate personnel

Access Denied: The Distinction between Easements and Licences

By Jeffrey Daniels

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

 

An easement is an interest in land that burdens one parcel and benefits another; it runs with the lands and binds all future owners. In order to create an easement, four specific criteria must be met:

  1. There must be a dominant and a servient tenement (a parcel that benefits and a parcel that suffers the detriment of the easement);
  2. The easement must accommodate the dominant tenement;
  3. The dominant and servient owners must be different persons; and
  4. The easement must be capable of forming the subject matter of a grant (the parties must have the ability to grant the rights and the rights granted must be sufficiently defined).

A licence is a grant of authority to enter upon another’s land for an agreed upon purpose, but does not create an interest in the land. It does not run with the land and does not bind future owners.

In Lauder Industries Inc. v Reid, 2018 ABQB 568, Lauder Industries Inc. (“Lauder”) was in the process of subdividing a property for a residential subdivision and as a condition of the municipality’s approval, was required to ensure there was an emergency access road to the north end of its property.

Lauder had two options: (i) it could construct a road on its own property parallel to a road on Reid’s property, or (ii) it could make arrangements with Reid for use of the existing road for emergency access. Lauder and Reid engaged in negotiations through counsel, which resulted in a letter to the municipality indicating Reid would allow Lauder to use the existing road for emergency access. The municipality requested that an easement be registered against title to Reid’s property. Reid refused to consent to registration of an easement.

In Court, Lauder argued that an easement agreement was reached through the negotiations. Reid argued that if there was an agreement, it was merely a licence granted only to Lauder and did not create an interest that would run with the land. The consequences for Lauder were severe, as a licence would not create an enforceable interest in land and would not fulfil the municipality’s access requirements.

Because the parties did not reduce the agreement into writing, the Court was left to analyze the surrounding circumstances, correspondence between counsel, and other available information. Fortunately for Lauder, the Court found the requirements of an easement were established in the exchange between counsel and ordered Reid to permit emergency access through the existing road.

This case is a good reminder of the distinction between easements and licences, and the importance of reducing agreements into writing.


To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal@amsc.ca and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol@auma.ca, or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.