Easement vs. Right-of-Way Explained: Land Use Rights in Ontario

You may hear words like “easement” or “right-of-way” when you buy, sell, or own land in Ontario. These words are really important because they say things about your land that you can and can’t do.

A lot of people don’t fully understand the difference between the two, but it’s important to know how they work, especially when it comes to shared access or land use.

Giving someone limited access to land you don’t own is what both easements and rights-of-way are all about. But they aren’t the same. Their goal, how they are used, and legal effects are very different.

The article provides a quick breakdown of those characteristics. It also talks about how they’re made, how they work under Ontario law, and what you need to know before you buy a house or make changes to it.

You can use this guide to learn about easement vs. right-of-way in Ontario real estate if you own a home, are buying or selling a home.

What You Need to Know About Easements in Ontario

An easement is a legal interest in land. It gives one landowner (the dominant tenement) the right to use part of another’s land (the servient tenement) for a defined purpose, without owning the land.

Easements are non‑possessory—you have the right to use, not own.

Easements run with the land—they remain attached even when the property changes hands.

For validity, an easement must:

• Involve two properties (dominant and servient);
• Clearly define its purpose and geographic scope;
• Be registered in Ontario’s Land Titles or Registry system.

Types of Easements

Ontario recognizes several forms of easements, including:

1. Express grant
2. Easement by necessity (implied)
3. Implied easement
4. Prescriptive easement
5. Statutory easement

Exploring Right‑of‑Way

A right‑of‑way is a particular type of easement. It specifically grants the right to pass over another person’s land. It’s most commonly used for shared driveways, pedestrian paths, or access roads.

The servient landowner retains ownership. This means the dominant party needs the landowner’s permission to alter the area beyond the easement’s scope. It is typically established by express grant or by necessity when landlocked.

Key Differences: Easement vs. Right‑of‑Way

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Creation of Easements & Rights‑of‑Way in Ontario

In Ontario, easements and rights-of-way can be created in several ways. Some are formal and documented, while others are implied by law based on how the land is used.

Understanding how these rights are created may help property owners with surprises during property transactions.

1. Express Grant

This is the most common and straightforward method. An express grant is a written agreement between two parties. It clearly sets out the rights and responsibilities related to the easement or right-of-way. This agreement is then registered on title with the local land registry office.

For example, if one landowner agrees to let a neighbour use part of their driveway to access the street, they can create a right-of-way through an express grant. Once registered, the agreement stays with the land even if it’s sold. This makes the arrangement enforceable under Ontario real estate law.

2. Easement by Necessity

An easement by necessity arises when land is severed, and one part ends up without access to a public road. In this case, the law may imply an easement to allow access across the remaining land. This type is often used to prevent a property from becoming landlocked.

For it to apply, there must be no other reasonable access to the land, and the necessity must exist due to how the land was originally divided. Courts usually step in to recognize this type of easement only when absolutely necessary and when the lack of access was not the fault of the owner.

3. Easement by Implication

This type of easement is not formally written but is assumed to exist because of how the land is used. An implied easement may be recognized when one part of a property depends on another for necessary access or services, and this use is clear and ongoing.

A common example is a shared utility line or a party wall between two connected buildings. If the use was obvious and continuous before the land was divided or sold, the courts may find that an implied easement exists—even if it was never put in writing.

This type usually requires strong evidence of consistent use and an intention to continue that use.

4. Easement by Prescription

A prescriptive easement is based on long-term use without formal permission. In Ontario, this type of easement can still apply under the Registry Act, but it is no longer recognized under the Land Titles Act, which now covers most properties in the province.

To claim a prescriptive easement, a person must show that they used the land:

• Openly;
• Continuously;
• Without permission; and
• For a minimum of 20 years.

This method is complex and often leads to legal disputes. Even when possible, it requires clear proof and often a court decision to confirm it.

5. Statutory Easement

Some easements are created automatically through provincial or municipal laws. These are known as statutory easements. They typically apply to public services like electricity, sewer lines, or gas infrastructure.

Statutory easements are often easements in gross, which means they benefit a person, company, or government—not a piece of land. These do not need a dominant tenement and are commonly used by utility providers to access and maintain their equipment.

Although created by law, they are usually registered on the land title so future buyers are aware.

Registering Easements and Rights‑of‑Way in Ontario

Easements and rights-of-way in Ontario must be registered on title to be legally valid and clearly recognized. Registration protects both the landowner granting the right (servient tenement) and the one benefiting from it (dominant tenement).

The easement appears as a charge or interest on the servient land’s title and may also be noted on the dominant title. This is done through Ontario’s land registration systems—either under the Land Titles Act or the Registry Act, depending on the property.

Registration gives constructive notice, meaning anyone searching the title is legally expected to know about the easement. This includes buyers, lawyers, lenders, and agents.

During a property sale, a title search is a standard part of the Agreement of Purchase and Sale process.

Any registered easement or right-of-way will be revealed before the deal closes. This gives buyers a chance to understand any restrictions or shared access rights tied to the property.

The Use and Legal Scope of Easements and Rights‑of‑Way

Easements in Ontario must be used only as originally intended. Their purpose and limits are defined in the agreement or registration documents.

For instance, if an easement allows pedestrian access, using it for vehicles would go beyond its scope and could lead to a legal dispute. The servient landowner has the right to challenge any unauthorized use.

Courts in Ontario rely on the exact wording of the agreement, the intent behind it, and past use when interpreting easements. Vague or unclear terms can lead to conflict, especially if property use changes or new owners take over.

To avoid issues, easement agreements should be clearly written, updated when needed, and properly registered on title.

Maintenance Responsibilities

If responsibilities are unclear, the easement agreement, case law, or negotiation define duties. Disputes may end up in court.

Generally:

• The dominant tenement must maintain the easement’s functionality—e.g. upkeep of a shared driveway.
• The servient tenement must avoid blocking or interfering—e.g. removing vegetation or obstacles.
• Utility easements? Typically, the utility holder handles maintenance, but the landowner ensures access.

Termination of Easements & Rights‑of‑Way

An easement (or right of way) can end by:

• Release: Dominant party formally gives it up.
• Merger: Same person owns both dominant and servient lands.
• Abandonment: Clear intent to stop using the easement.
• Expiration: Easement had a defined end date.
• Necessity no longer exists: For easement by necessity.
• Prescription: Servient party reclaims through use.
• Statute or condemnation: Government action.

How Easements and Rights‑of‑Way Can Impact Your Property

Buying/selling: Easements affect what you can do on your land. They may:

• Limit alterations or building permits.
• Require permission for changes (e.g. paving).
• Affect property value—understanding them helps avoid surprises.

Financing & insurance: Lenders and insurers review title for existing easements.

Dispute resolution: Proper drafting and registration help prevent neighbour disputes.

Final Thoughts

Easements and rights-of-way are important legal tools that can directly affect how land is used and accessed in Ontario.

While a right-of-way is a type of easement focused on access, both should be properly defined, registered, and understood before any property decision is made. These rights can impact property value, future plans, and legal responsibilities.

The information provided above is of a general nature and should not be considered legal advice. Every transaction or circumstance is unique, and obtaining specific legal advice is necessary to address your particular requirements. Therefore, if you have any legal questions, it is recommended that you consult with a lawyer.