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Easements Contrasted with Licenses

. Mihaylov v. 1165996 Ontario Inc.

In Mihaylov v. 1165996 Ontario Inc. (Ont CA, 2017) the Court of Appeal contrasts land easements and licenses:
Licences and Easements Distinguished

[47] The following are well-established propositions of law which can be found in real property texts such as Anne Warner La Forest, Anger & Honsberger Law of Real Property, loose-leaf, 3rd ed. (Toronto: Thomson Reuters, 2016) vol. 2, at paras. 16:40.10 to 16:40.20, 17:20.10 to 17:20.20; and Gale on Easements, 19th ed. (London: Sweet & Maxwell, 2012), at pp. 4-42, 79-82.

[48] The right to do something on land belonging to another can be a licence or an easement. A right to walk over a path on another’s land is a good example of this. If I give you the right to walk along a path on my land so that you can reach the lake in front of it, that right may be a licence or an easement. In its simplest terms, it depends upon whether I gave you alone the right to walk along the path or whether I agreed that the right to walk along the path was to bind my land and benefit yours. The former is a personal right known as a licence. The latter is a proprietary right, known as an easement.

[49] Because a licence is a personal right, a licence would give only you the right to walk along the path on my property to reach the lake – that right would not extend to anyone else. Further, that right is neither connected to the use of any lands which you might own nor does it amount to an estate or interest in my land. The licence simply makes lawful that which would otherwise be trespass. Without the licence, the act of your entering on my land and walking along it to reach the lake would amount to trespass. Importantly, unless we agree otherwise, I may revoke, at will, the permission I gave you (i.e., the licence).

[50] But if the right that I granted was an easement – and not a mere licence – the situation is quite different. Because an easement is a proprietary right – not a personal one – the right to walk along the path on my land is not limited to you alone; it would attach to your land so that all those who lawfully occupy your land (present and future) would have the right to walk along the path on my land to the lake. It would also bind my land so that the owners of my land (present and future) would have to permit the lawful occupants of your land to walk along the path. Moreover, because an easement is a proprietary interest in or right over my land, while I retain absolute dominion over my property, my use of the land is subject to the limitations imposed by the easement.

[51] Re Toscano and Dorion (1965), 1965 CanLII 623 (ON CA), 51 D.L.R. (2d) 298 (Ont. C.A.) and Wiener v. Elgin (County), 1947 CanLII 338 (ON SC), [1947] 2 D.L.R. 346 (Ont. H.C.) are two examples of situations in which the court used these principles to determine whether the right in question was a licence or an easement.

[52] Four characteristics are essential to the grant of an easement:
1. there must be a dominant and a servient tenement;

2. the easement must accommodate the dominant tenement;

3. the owners of the dominant and servient tenements must be different persons; and

4. a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.

See Barbour v. Bailey, 2016 ONCA 98, 66 R.P.R. (5th) 173, at para. 56; and Depew v. Wilkes (2002), 2002 CanLII 41823 (ON CA), 60 O.R. (3d) 499 (C.A.), at para. 18.
[53] If there is an easement in this case, the Abel Land is the dominant tenement and the Mihaylov Land is the servient tenement. The Pipeline accommodates the dominant tenement in that it serves the Abel Land and is reasonably necessary for the better enjoyment of that land. And, clearly, the two parcels of land are separately owned and have been throughout. I will consider the fourth characteristic of easements, below, when discussing the 1979 Agreement.


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