The answer to that question, unfortunately, is a giant, “It Depends.”

The most common way a Right of Way easement is created are 1) grant 2) necessity or 3) prescription.

Easement by Grant

1) An easement by Grant means the two property owners agree on exactly what the easement will be and a signed written document (often as part of a deed) confirms the terms. Check out our blog on how to draft a solid easement. The document is then recorded at the Registry of Deeds and the easement ‘runs with the land’ meaning it stays attached to the land until the parties agree to remove it or it can be proven that the easement has been abandoned (uncommon).

Easement by Necessity

2)      If the only way to access a parcel is to travel over another parcel, then an implied right of way easement is created. Keep in mind, in some limited cases, ‘navigable water’ frontage can be considered access, meaning the land right of way is not one of necessity. Easements by necessity are often implied when one party sells a portion of his land and the only way to reach the sold lot is to travel across the lot he retained.

Prescriptive Easement

3)      Prescriptive easements can be created when a property owner uses some portion of a nearby property for their benefit for the requisite number of years, (usually 20) in a way that is open notorious, adverse and continuous. These are usually the easements people are referring to when they talk about ‘Grandfathered rights’

Is the Property Migrated?

The first thing to determine is whether the property you are traveling over has been migrated to the new land registration system yet or not. (If you are not familiar with migration, start with our blog on the topic).

Limit of 10 years Post Migration to record Easements

The Nova Scotia Land Registration Act tells us if a parcel has been migrated, except in limited circumstances (see our blog for more details), you only have 10 years from the date of migration to record an easement, including Right of Ways. If you are 10 years post migration, you will usually need a court order to record the easement.

No New Ungranted Easements Created Post Migration

The Act also prevents any new prescriptive easement from being created post migration. So to have any chance of recording your desired Right of Way, you will have to be able to prove that you used it for the full period of 20 years PRIOR to the date of migration.

However, if you have your full 20 years of open, continuous and adverse use and the parcel you wish to record on is not 10 years post migration, then you are able to record your easement as benefit to your parcel and a burden to theirs. If the easement is by prescription then you will have to file a sworn statutory declaration (and possibly round up some from other witnesses) that outline your use and support your claim.

Notice to Owner of Burdened Lot

Keep in mind, in Nova Scotia, if you record an easement on another person’s property, you are required to give them formal notice that you have done so. They then have the option of disagreeing that the easement is valid and requiring you to have the court confirm the easement is valid. If you fail to do so, the burdened property owner can remove the easement from the registry.

Statutory Declarations to Outline Claim of Easement on Non-migrated parcels

If neither affected property is migrated, you are not able to formally record an easement as you can on a migrated parcel. Instead, you would record your supporting evidence in the form of a sworn Statutory Declaration. However, because there is no ‘gate-keeper,’ so to speak, under the ‘old system’, there is a risk that when the burdened parcel gets migrated, the lawyer responsible for the migration may still dispute your claim.

 By: Dianna Rievaj - Founding Lawyer

Have Questions For Us?:

If you have any questions about easements or right of ways 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.

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Nothing contained on this blog is legal advice or constitutes a legal opinion. While it is our goal to provide information which is current, legislative changes and court decisions, among other matters, may result in some information no longer being current or accurate. You should consult a lawyer before relying on any information. The views expressed herein by individual contributing lawyers posting entries to the blog are solely those of the authors and should not necessarily be attributed to or considered representative of the firm of Highlander Law Group Lawyers