What does it mean if someone has a Deeded Right of Way Easement over my Nova Scotia property?
Easements grant rights over someone elses property so it’s important to be very specific as to where and what the easement is to avoid the easement being voided for vagueness
Deeded Easements Must be Created by Agreement and Recorded in Writing
An easement is the right for the owner of one parcel of land to enjoy a specific benefit over a nearby property. If it is a ‘Deeded’ easement, it means the right was created by a documented agreement between the owners of the involved parcels of land. In Nova Scotia, deeded easements attach to the land and continue to be in force even after the parcel has changed hands.
The most common Deeded Right of Way Easement in Nova Scotia is the right for the owners of one parcel of land to travel over someone else’s parcel of land – typically either a shared driveway or over a road that leads to a waterfront or other landlocked parcel of land.
Specificity is Important Because Easements are Read As Narrowly as Possible
Because an easement necessarily is burdening someone else’s land, the courts will always read the easement in as narrow a light as possible to minimize the impact on the other person’s land. For that reason, what a person is entitled to do with an easement is fact specific as to what it says in the easement document itself and the person holding the easement will only be allowed to do what it states in the easement and nothing more.
Elements to Provide Clarity in a Well Drafted Easement
A well drafted easement will make it clear the following elements:
Location – where is the right of way? Where does it start? Where does it end? How wide is it? “Over the existing road” is not idea as over time the road may grow in or be rerouted and may cause confusion over where your access point is.
Timing – When is the person allowed to access the right of way? Are they allowed to access the easement whenever they want or only during certain times of day or year? Is there a limit on the frequency?
Type of access –How can they access the right of way? Are they only allowed on foot? Or are they allowed to travel via vehicle? Is there a limit to the type/size of vehicle?
Upkeep & Maintenance – Who is responsible to maintain the easement? Who is responsible for payment?
Unclear Easements may be Declared Void for Vagueness
If any of these elements are not clear, it is possible the easement itself can be found invalid for vagueness. However, that would be a decision for a court to make. If someone has an easement over your property, your best bet is to allow them to use it and consult a lawyer to discuss your options.
If you have any questions about this subject, you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.
By: Dianna M. Rievaj - Founding Lawyer
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