When you buy a home, sell a property, or plan to build on land you already own in Ontario, two words come up that often get used as if they mean the same thing. They don’t. An easement is a broad legal interest in land. A right of way is one specific kind of easement. Knowing the difference protects you from disputes with neighbours, surprises at closing, and limits on what you can do with your property.
This article explains how Ontario law treats both. You will learn what an easement actually is under the four classic requirements adopted by Ontario courts, how it differs from a right of way, the five ways either can come into existence, how they get registered, and what they mean for your property value and future plans.
Insight Law Professional Corporation handles residential and commercial real estate matters across Ontario. The patterns below are the ones we see most often in client files.
Need Help with Your Real Estate Transaction?
Speak with an experienced Ontario real estate lawyer to get assistance with your real estate matter.
Serving Clients Across Ontario
Remote Services Available
Client Focused & Flexible
What an Easement Is Under Ontario Law
An easement is a legal interest that gives one landowner the right to use part of another landowner’s property for a defined purpose, without owning that land. The land that benefits is called the dominant tenement. The land that bears the burden is called the servient tenement.
An easement is nonpossessory. You get to use the area covered by the easement. You do not get to take possession or build on it as your own. Easements also run with the land. Sell either property and the easement transfers automatically to the new owner. That is why discovering an unexpected easement at closing can change how a buyer values a home.
Ontario courts apply the four classic requirements from the leading English case Re Ellenborough Park, which Canadian courts have adopted. For a right to qualify as an easement, you need all four of these.
There must be a dominant tenement and a servient tenement. A right cannot exist in the air. It must benefit a specific piece of land and burden another.
The easement must accommodate the dominant tenement. The right must connect to the normal use of the dominant land, not just provide a personal benefit to the owner.
The dominant and servient lands must be owned by different people. You cannot have an easement against yourself.
The right must be capable of forming the subject matter of a grant. The right must be defined clearly enough that a lawyer could draft a grant of it.
If any of these four fail, what looks like an easement may actually be a personal licence that ends when the property changes hands.
What a Right of Way Is
A right of way is a particular type of easement. It gives the dominant owner the right to pass over the servient owner’s land. Common examples include shared driveways between semi detached homes, footpaths to lake access on cottage properties, laneway access behind urban lots, and utility access tracks across rural land.
Every right of way is an easement. Not every easement is a right of way. Other easements cover utilities, drainage, support for shared walls, parking, and access to services. The label matters because the scope of what you are allowed to do with the right depends on exactly what was granted.
A right of way for pedestrian access does not let you drive a car across the same path. A right of way for one vehicle does not give you the right to park or store materials. Courts read the original grant strictly.
Easement vs Right of Way at a Glance
The table below shows where the two concepts overlap and where they part ways.
| Feature | Easement | Right of Way |
| Definition | A broad right to use part of another person’s land for a defined purpose | A specific easement that allows passage over another person’s land |
| Common uses | Utilities, drainage, support, parking, light, party walls, access | Driveways, laneways, footpaths, access roads |
| Types | Appurtenant (tied to land) or in gross (tied to a person or utility) | Almost always appurtenant |
| Scope of use | Limited to the purpose stated in the grant | Limited to the type of passage stated in the grant |
| Alteration of the area | Requires servient owner’s consent unless the grant allows it | Same restriction |
| Registration | Must be registered on title to bind future owners | Must be registered on title to bind future owners |
| Maintenance | Usually the dominant owner, unless the grant says otherwise | Usually the dominant owner |
| Termination | Release, merger, abandonment, expiry, statute | Release, merger, abandonment, expiry, statute |
Five Ways an Easement or Right of Way Can Be Created in Ontario
Ontario law recognizes five paths to creating an easement. Each has different evidentiary and legal requirements.
1. Express Grant
The cleanest and most common method. Two owners sign a written grant that identifies the dominant and servient lands, defines the purpose and physical area of the easement, and gets registered on title through Ontario’s electronic land registration system.
A typical example is a builder who creates side yard easements between two new homes so each owner can access their backyard. Once registered, the grant binds every future owner of both properties.
2. Easement by Necessity
When one parcel of land is severed and the resulting parcel has no other reasonable access to a public road, Ontario courts may imply a right of way over the remaining land to prevent the new parcel from being landlocked. Necessity does not mean inconvenience. The claimant must show there is no other reasonable means of access and that the lack of access flows from the original severance.
3. Easement by Implication
Sometimes an easement is implied by the way the land was used before a severance, even when nothing was written down. If a driveway, sewer line, or pathway was in continuous use across both halves of a property at the time the property was split, a court can find that the parties must have intended the use to continue. Strong evidence of long, obvious, and necessary use is required.
4. Easement by Prescription
A prescriptive easement arises from long use of someone else’s land without their permission. Two routes lead to one. Under section 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, a 20 year period of qualifying use creates the right, or a 40 year period creates an absolute right defeated only by written consent. The doctrine of lost modern grant lets a court infer a deemed grant after 20 years of qualifying use.
The use must be continuous, uninterrupted, open, and peaceful, and it must occur without the servient owner’s permission. The Latin phrase courts use is “nec vi, nec clam, nec precario,” which means without force, without secrecy, and without permission.
Here is the crucial point most property owners miss. Section 51(1) of the Land Titles Act, R.S.O. 1990, c. L.5 bars new prescriptive easements over any land that has been registered in the Land Titles system. Almost all Ontario land is now in Land Titles. A prescriptive claim can still succeed today, but only if the full 20 year period of qualifying use ran before the servient land was converted to Land Titles.
The Ontario Court of Appeal reaffirmed this analysis in Kubiniec v. Dy (2025) and again in Murray Leung v. Dyck (2026), where the court recognized a prescriptive easement over a shared driveway because the qualifying use predated conversion.
5. Statutory Easement
Some easements are created automatically by provincial or federal statute, or by municipal by law. Utility easements for hydro, gas, sewer, and water are the most common example. These are usually easements in gross, meaning the right belongs to a utility company rather than to a piece of dominant land. They still appear on title so that future buyers know about them.
How Easements and Rights of Way Are Registered
Registration is the difference between a right that binds the world and a right that may bind no one but the original parties.
In Ontario, easements and rights of way must be registered on title under the Land Titles Act or, for properties not yet converted, under the Registry Act, R.S.O. 1990, c. R.20. Once registered, the easement appears as a charge or instrument against the servient title and may also be noted on the dominant title.
Registration gives constructive notice. That means every future buyer, lender, lawyer, and title insurer is treated by law as knowing about the easement, whether they actually checked or not. Your real estate lawyer will discover any registered easement during the title search step of the agreement of purchase and sale process, before closing.
An unregistered easement may still be enforceable between the original parties under contract law, but it can be defeated against a later buyer who takes title without notice. Anyone relying on an easement should make sure it appears on title.
Scope of Use and Common Disputes
Easements in Ontario are interpreted strictly. The scope of the right is fixed by the wording of the grant, the surrounding circumstances at the time, and any history of use. Stretching an easement beyond its original purpose almost always leads to a dispute.
The most common fact patterns we see are these.
A right of way granted for pedestrian access being used for vehicles, or a right of way for one car being used for service trucks.
A utility easement that was meant to allow buried lines being relied on to install above ground infrastructure.
A driveway easement that has been quietly widened over decades through informal use.
A shared driveway where one neighbour repaves, regrades, or adds a fence without the consent of the other.
Courts read the original grant carefully. Vague or outdated grants invite expensive litigation. If your easement language was drafted decades ago, a current legal review may save you significant cost later.
Who Pays for Maintenance
Maintenance is one of the most overlooked parts of an easement. The grant should say. If it doesn’t, default rules and case law fill the gap.
Generally, the dominant owner has the right to maintain the easement so it continues to serve its purpose. That includes resurfacing a shared driveway used for vehicles, clearing snow from a pedestrian path, or fixing a culvert under a laneway. The servient owner is not required to maintain the easement but must not block or interfere with it. Utility easements are usually maintained by the utility, but the landowner has to keep access available.
For shared driveways especially, a cost sharing schedule attached to the original grant prevents most fights.
How an Easement or Right of Way Ends
An easement does not last forever in every case. Ontario law recognizes several ways an easement can end.
Release. The dominant owner signs a written release and removes the registration from title.
Merger. The dominant and servient lands come under common ownership. Once one person owns both, the easement disappears, because you cannot have an easement against yourself. Severing the land later does not automatically bring it back.
Abandonment. The dominant owner shows clear intent to stop using the easement. Mere non use is not enough. Acts like building a fence across the path or paving over the entrance can be evidence of abandonment.
Expiry. The grant set an end date and that date has passed.
End of necessity. An easement by necessity ends when the necessity no longer exists. If the dominant parcel gains access to a public road through another means, the necessity falls away.
Statute or expropriation. A statutory authority terminates or replaces the easement.
Removing the registration from title is a separate legal step that often gets forgotten even when the easement has ended in substance.
How Easements and Rights of Way Affect Buying, Selling, and Financing
For buyers, an easement on the property you are buying may restrict what you can build, where you can plant trees, where you can fence, and how you can use a driveway. Lenders and title insurers consider easements as part of the risk on the title. A surveyor’s plan may help you see the physical footprint.
For sellers, undisclosed easements can create liability after closing under the standard seller warranties in the OREA agreement of purchase and sale. Disclosing them up front gives the buyer a clean picture and reduces the risk of a price abatement claim or a lawsuit.
For builders and renovators, an easement can be the reason a permit application is refused. Always check title before drawing plans for additions, pools, sheds, or decks near a property line.
For neighbors, an easement is the basis for the most common boundary disputes in Ontario. A clearly written, properly registered easement keeps relationships intact. A vague handshake arrangement causes years of friction.
For a broader overview of how Ontario law treats land access rights, see our full easements guide.
Frequently Asked Questions
Is a right of way the same as an easement in Ontario?
A right of way is one type of easement. It gives the holder the specific right to pass over another person’s land. Other easements include utilities, drainage, support, and parking. Every right of way is an easement, but not every easement is a right of way.
Does an easement transfer to the next owner when a property is sold?
Yes, if the easement is registered on title. Easements appurtenant run with the land, so both the benefit and the burden pass automatically to new owners. Easements in gross, such as utility easements, stay with the utility regardless of who owns the land.
Can you build over a registered easement in Ontario?
Generally no, not without the servient owner’s written consent. Even where the easement does not appear to be in use, the right still exists and the dominant owner can demand that any structure be removed. Building permits are often refused if a proposed structure encroaches on a registered easement.
Can you create a prescriptive easement today over a property in Ontario?
Almost never. Section 51(1) of the Land Titles Act bars new prescriptive easements over any land that has been registered in the Land Titles system, and almost all Ontario land has now been converted. A claim can still succeed if the 20 year period of qualifying use ran before the servient land was converted, as the Ontario Court of Appeal confirmed in Murray Leung v. Dyck (2026).
How do you find out if there is an easement on a property you are buying?
Your real estate lawyer runs a title search before closing and reviews any registered instruments against the property. Registered easements show up as charges or notations on title. Ask for a copy of the easement document itself, not just the title summary, so you understand the scope.
Can a registered easement be removed?
Yes, but only with the right legal step. A release signed by the dominant owner and registered on title removes the easement. A court order may be needed if the parties disagree, the dominant tenement no longer exists, or the easement has been abandoned. The registration must be removed even after the easement has ended in substance.
Final Thoughts
Easements and rights of way shape what your property is worth, what you can build on it, and how well you get along with your neighbors. The differences between the two matter, and the path by which they were created matters more.
A clear, written, registered grant is the best tool you have. If you are buying or selling property with shared access, or you have a long standing informal arrangement with a neighbour that has never been put on paper, talk to a lawyer before something changes. The cost of getting it right at the start is small compared to the cost of resolving a dispute later.
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.
