March 14, 2025 · 8 minute read
In real estate, neighbor disputes can sometimes be unavoidable. One of the most common issues concerns rights of way and easements. This article will help you understand these concepts and how to manage them effectively and legally. We will also discuss formal demand letters and how to use them if necessary.
What is a Right of Way?
A right of way is a right granted to an individual or group to pass through another person's property. This right is usually granted by the landowner (the "servient tenement") to another person (the "dominant tenement"). Rights of way can be granted for various reasons, such as access to a public road or another property.
What is an Easement?
An easement is a burden imposed on a property, the servient tenement, in favor of another property, the dominant tenement, owned by a different owner. This burden requires the owner of the servient tenement to allow certain uses by the owner of the dominant tenement or to refrain from exercising certain rights inherent to ownership. The easement extends to everything necessary for its exercise.
Article 1177 of the Civil Code of Quebec [1]
In short, an easement is a right granted to a landowner (the "dominant tenement") over another person's land (the "servient tenement").
This right can include:
- the right of way
- access to water
- the right to perform work on the servient land
Easements are generally established by contract or by law.
What is a Right of Way Easement?
A right of way easement is a type of easement that gives a person the right to pass through another person's land. This right can be granted for various reasons, such as access to a public road or another property. Right of way easements are usually established by contract or by law.
| Right of Way | Easement | Right of Way Easement | |
|---|---|---|---|
| Permission | Generally requires the landowner's permission. | Generally requires a contract or is established by law. | Generally requires a contract or is established by law. |
| Use | Used to access a public road or another property. | May include access to water, right of way, or the right to perform work on the servient land. | Used to access a public road or another property. |
| Obligations | The landowner must generally allow access if necessary for the dominant tenement. | The owner of the servient tenement must generally allow access if necessary for the dominant tenement. | The landowner must generally allow access if necessary for the dominant tenement. |
| Form of Presentation | Generally presented as an agreement between neighbors or a notarized deed. | Generally presented as a contract, notarized deed, or mentioned in the certificate of location. | Generally presented as a contract, notarized deed, or mentioned in the certificate of location. |
| Exceptions | Exceptions may be made for landlocked properties. | Exceptions may be made for landlocked properties. | Exceptions may be made for landlocked properties. |
| Examples | A landlocked property owner obtains the right to cross a neighbor's land to access a public road. | A property owner obtains the right to access a water source located on a neighbor's land. | A landlocked property owner obtains the right to cross a neighbor's land to access a public road, established by contract or by law. |
Different Types of Easements
This article mainly focuses on real easements, but it's important to note that there are different types of easements, including:
- Real easements are attached to the land and benefit all successive owners. Example: right of way, view, non-construction, public utility.
- Personal easements are linked to a specific person and not the land; they usually end upon the person's death or departure. Example: usufruct, right of residence, drawing water for a specific person.
Common Easements in Quebec: Examples and Explanations
Easements are commonly used for various reasons. Here are some examples of common easements:
-
Hydro-Québec Easement: This easement allows Hydro-Québec to use part of your property to run overhead or underground wires or to move equipment for network maintenance.
-
Right of Way Easement: This easement is often granted to a landlocked property owner to allow access to a public road by crossing a neighbor's land.
-
View Easement: This easement can be granted to ensure a property owner has an unobstructed view of a particular landscape, by limiting possible constructions on the neighboring land.
-
Non-Construction Easement: This easement prohibits the owner of the servient land from building on a specific part of their land.
-
Drainage Easement: This easement allows a property owner to drain water from their land onto a neighbor's land.
-
Public Utility Easement: This easement may prevent an owner from building in a specific area to allow for the installation or maintenance of public infrastructure, such as water pipes or power lines.
These easements are generally established by a notarized deed or contract and are registered in the Quebec land registry.
What is a Landlocked Property?
A landlocked property is a situation where a parcel of land is surrounded on all sides by other properties, with no direct access to a public road. In this case, the owner of the landlocked property generally has the right to request a right of way from neighbors to access the public road.
As a general rule, a neighbor needs your permission to cross your land. However, there are exceptions. For example, if their property is landlocked, you may be required to grant your neighbor a right of way to access the public road. Additionally, if a right of way easement has been established, your neighbor may have the right to cross your land without asking for your permission each time.
Rights and Obligations of Each Party
The Owner of the Servient Tenement
(the land on which the right of way or easement is exercised)
- Must allow access to their land if necessary for the dominant tenement
- Has the right to request compensation for the use of their land
- Must maintain the passage or easement area in good condition, unless otherwise specified in the deed of easement
- Allow work to create or maintain the passage
- Must not obstruct or restrict the use of the right of way or easement by the owner of the dominant tenement
The Owner of the Dominant Tenement
(the owner of the land who benefits from an easement or right of way over another property)
- Has the right to use the right of way or easement for the specified use, whether to access their own land or for another specified use
- Also has the right to request that the right of way or easement be respected and not obstructed
- Must use the right of way or easement reasonably and not cause unnecessary damage to the servient tenement
- Must also respect the specific terms of the right of way or easement, which may include restrictions on use or maintenance obligations
Key Elements of an Easement
When reviewing an easement, it is important to ensure that all relevant elements are included to guarantee its validity and effectiveness. Here are the key elements that must be present in an easement:
-
Identification of the properties and their relationship in the easement: It is essential to clearly identify the properties involved in the easement, including the dominant tenement (the property that benefits from the easement) and the servient tenement (the property on which the easement is exercised). Any buildings on these properties should also be identified.
-
Identification of the type of easement: It is important to specify the type of easement being applied. This identification should explain in detail the nature of the use, its extent, and the situation of the easement. For example, in the case of a right of way easement, the part of the land accessible to reach the landlocked property should be specified.
-
Deed of easement: To formalize a right of way or easement, it is necessary to have a notary draft a deed of easement. This deed will establish the right of way as well as any conditions and considerations. Once all parties have agreed to the deed, they sign it and it is then published in the land registry. An easement registration is then made on the affected lots.
The Role of the Certificate of Location
The certificate of location is an important document that can provide information about rights of way. It is a document that describes the current state of a property in relation to property titles, the cadastre, and any laws and regulations that may affect it.
In general, a certificate of location is valid for ten years, as long as it accurately reflects the current state of the property. If modifications have been made, a new certificate may be required.
Regarding rights of way, the certificate of location may indicate if a right of way is registered on the property. It can also show the location of the right of way on the land.
If a right of way is registered on your property, it means that someone has the right to use part of your property for a certain purpose, usually to access another property or a public road. This can affect your use of the property and may also impact the property's value.
Tips Before Buying
It is always recommended to consult the certificate of location before buying a property to understand all rights and restrictions that may apply to the property.
The Role of the Quebec Land Registry
The Land Registry is used to secure real estate transactions. It centralizes information related to properties and allows for the recording of deeds establishing easements and rights of way. This ensures transparency and security in transactions, allowing buyers to verify the existence of charges or restrictions.
It is an essential tool to guarantee legal security and prevent disputes between neighbors. It provides legal proof of the existence and extent of easements, thus protecting the rights of owners.
Right of Way by Water: Access and Restrictions
Access to lakes and rivers in Quebec, although considered a common good, is subject to specific rules. The provincial government owns many bodies of water, allowing navigation in compliance with established limits. However, land access via private property is restricted. Waterfront owners can prohibit passage on their land. Thus, public access is generally via adjacent roads or municipal beaches.
Once on the water, it is imperative not to encroach on private shores. In addition, municipal, provincial, and federal regulations govern the use of bodies of water, including permits for motorized boats and specific restrictions for certain areas. Respect for other users and the environment is essential to ensure harmonious coexistence.
The Myth of Acquired Rights
There is a common myth that continuous use of a path or part of a property can establish a right of way by default. However, in Quebec, this is not necessarily the case.
The idea that prolonged use of a path to access a lake or another property can create a right of way is often called "acquisitive prescription." However, according to the Civil Code of Quebec, acquisitive prescription does not apply to rights of way easements.
In other words, even if you have used a path on someone else's land for 20 years, it does not necessarily mean you have a legal right of way. For a right of way to be established, it generally must be created by a deed (such as a notarized deed or contract) or by law.
Dealing with Encroaching Neighbors
A neighborhood disturbance can occur when a neighbor's actions interfere with your enjoyment of your property. If a neighbor constantly crosses your land without valid reason or right of way, this may constitute a neighborhood disturbance. In this case, you can send a formal demand letter to your neighbor to ask them to stop their actions. If this does not resolve the issue, you may consider taking your neighbor to court to enforce your rights.
Using a Formal Demand Letter
A formal demand letter is a letter sent by one person to another to ask them to stop an action or fulfill an obligation. In the context of rights of way and easements, a formal demand letter can be used for different reasons:
- Non-compliance with the right of way: If a neighbor blocks access to your right of way, for example by building a fence or parking a vehicle to prevent passage, a formal demand letter may be necessary to ask them to respect your right of way.
- Damage caused by the use of the right of way: If the use of the right of way causes damage to your property, such as damage to the pavement or vegetation, a formal demand letter may be necessary to ask the neighbor to repair the damage or modify their use of the right of way to prevent further damage.
- Unauthorized modification of the right of way: If a neighbor modifies the right of way without your permission, for example by widening the path or changing its route, a formal demand letter may be necessary to ask them to restore the right of way to its original state.
Hydro-Québec Easement
The Hydro-Québec easement allows Hydro to use part of your property to run overhead or underground wires, or to move equipment for network maintenance. This easement is usually established on the certificate of location. As an owner, you have the right to receive compensation for the use of your property and to ask Hydro-Québec to respect the terms of the easement. You must also allow Hydro-Québec to access your property for the needs of its electrical network.
When Should You Consult a Lawyer?
Before consulting a lawyer, you might consider other options. Citizen mediation, for example, is a non-confrontational approach that can help resolve disputes more amicably and at a lower cost. An impartial mediator can help both parties find a mutually acceptable solution.
If mediation does not resolve the issue, or if the neighbor continues to disregard your rights, you may consider taking the matter to small claims court. This court is designed to handle disputes more quickly and informally, and you do not necessarily need a lawyer to represent you.
If all else fails, it may be necessary to consult a lawyer to resolve a dispute. For example, if your neighbor refuses to respect the terms of an easement or if you receive a formal demand letter, it may be wise to consult a lawyer to understand your rights and options.
Conclusion
By understanding these concepts and knowing your rights and obligations, you can effectively manage neighbor issues related to rights of way and easements. Remember that in some situations, it may be necessary to consult a lawyer to help resolve these issues.
* This text provides a general explanation of the law in force in Quebec and does not constitute legal advice or an opinion. For rules specific to your situation, please consult a lawyer.
