Is an Easement Covering Almost All of a Neighboring Property Permissible?

In Robinson v. Pipito the British Columbia Court of Appeal considered the legal validity of an innovative scheme involving an easement that covered about 80 percent of a property, and benefitted the owners of the land next to it.

The case involved a land-owning couple who subdivided their property into two lots with the intent of keeping the first lot (“Lot 1”) for themselves, and selling the second one (“Lot 2”). Since they wanted to reserve the right to do certain things on Lot 2 (namely farm the land, and remove trees and gravel), they registered an easement over almost 80 percent of Lot 2, in favour of themselves as the present owners of Lot 1. They documented this in a registered Easement Agreement, and proceeded to sell Lot 2 to a third party.

After a period of time, a dispute ensued: The owner of Lot 2 claimed that the practical effect of his duty to tolerate certain activities on his property was to exclude him from it completely, since the Lot 1 owners had essentially taken full possession of the easement area.

At trial, a judge invalidated the Easement Agreement and ordered the cancellation of the relevant Land Titles registration respecting Lot 2. The judge concluded that the over-broad easement granted by the owners was tantamount to them selling that second property to one party, but giving almost the full extent of its use and enjoyment to someone else (in this case, themselves as well as any subsequent future buyers).

In ruling on the later appeal, the B.C. Court of Appeal reflected on the basic legal principles that underpin the “easement” concept. It first acknowledged that by definition, any easement over Lot 2, no matter how large or small, would have the effect of impinging on and detracting from the rights of that property’s legal owner, so that was not the governing test of whether the expansive easement in this case was valid. Nor was its legality to be gauged solely by the nature of the farming and other activities performed on Lot 2 by the Lot 1 owners. The Court also adverted to a well-settled legal principle that a purported easement cannot grant exclusive possession or unrestricted use of a parcel of land; however that did not apply here as the contentious easement covered only the vast majority of Lot 2, rather than all of it.

Applying what it termed a “common sense” analysis, the Appeal Court concluded that the Easement Agreement in this case went too far: It essentially gave the owners of Lot 1 the exclusive use and possession of virtually all of Lot 2, and in fact effectively barred the Lot 2 owner from using the land in any substantial way. The rights granted to the Lot 1 owners (and their eventual successors) were accordingly so inconsistent with the rights of the Lot 2 owner(s) that it actually amounted to “something more than an easement” in law.

As such this arrangement was ruled impermissible; the trial judge’s order invalidating the Easement Agreement and striking it off the Lot 2 title register was affirmed. See Robinson v. Pipito, 2014 (BCCA).