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Law Maven
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Category: Canada Law
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If I own land in my neighbor's yard, am I legally

Customer Question

If I own land in my neighbor's yard, am I legally required to give him an easement?
Submitted: 7 months ago.
Category: Canada Law
Expert:  DrOlivia-JD-MD replied 7 months ago.

Hello. My name is ***** ***** I'm an attorney. I'll be happy to help you in any way I can. My goal is to make sure you are completely satisfied before you submit your rating so please let me know if you have additional questions or you need me to clarify anything. If there is a delay in the time it takes me to respond it is because I am working with a customer or I am not online - but rest assured I will respond to your follow up question, if you have one. Also, I am on a mobile unit, which automatically asks you to submit a rating once I submit a response – but please don't feel like you need to do so until we are done speaking. What do you mean by owning land IN your neighbor's yard? Do you jointly own it??

Expert:  DrOlivia-JD-MD replied 7 months ago.

My apologies... this question says 'Canada' and I thought it was U.S. I will opt out so a Canadian expert can answer this.

Expert:  Law Maven replied 7 months ago.

Hello – my name is***** am a Canadian lawyer, and I’ll be happy to help with your question today.

It will still be helpful in answering your question to know roughly where the property is located -- province and region -- and what the arrangement between the two pieces of land looks like. Is there an isolated part of your neighbour's land that belongs to you (they own the ocean area, you own an island in that area)? Or does some of your land protrude into their yard more like a peninsula than an island? Or do you share ownerships of the same piece of land? Or...?

In general Canada has two different ways of registering title to land.

  • Under the Torrens system (common in Ontario, for instance) once title is registered, no new easements can be made unless both parties agree. Your neighbour could not force you to give an easement, but the two of you could negotiate and the neighbour could purchase an easement, or you could create reciprocal easements if that made sense based on the way the two pieces of land run together.

 

  • Under the Deeds system, easements can be created by unopposed use over a period of time set out in the province's legislation (typically at least seven years). So if you buy a house where the person before you allowed the neighbour to use their land for seven years, without payment, and without telling that neighbour to stop, the neighbour could argue that they have an easement by right. Essentially the older Deeds system allowed for a person to get some rights to property by using it or squatting on it without the owner's clear permission or clear opposition. If the owner is silent, the Courts see that as them not enforcing their ownership, and over time they lose the ownership by non-enforcement.

As you can see there are considerable differences in how property law works in different parts of Canada, so there is really no way I can state with certainty what would be legally required in your situation without a lot more information. I'd be pleased to go into more detail in further answers, if you wish to provide that information.

Best Regards,

Anne

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