In real estate law, the easement is a fundamental concept that helps reconcile property rights between neighbors. Whether it involves access to a public road or a restriction against building higher than a certain height, easements meet practical needs while regulating relationships between properties. But what exactly is an easement, and how does it differ from a right of way?

What is an easement?

By definition, an easement (art. 1177) is “a burden imposed on a property, the servient land, in favor of another property, the dominant land, which belongs to a different owner.”

It is therefore a real right encumbering one property (the servient land) for the benefit of another (the dominant land). The servient land provides a service, while the dominant land benefits from it. What constitutes a constraint for the first provides an advantage for the second.

To be enforceable against third parties, the easement must be registered in the land register (art. 2941). Once registered, it remains valid despite a change of ownership. Indeed, it is attached to the properties, not to the individuals.

Moreover, the easement must benefit the dominant land itself, and not only its owner. In other words, the service rendered must improve the use or value of the property.

Exemple : ---- Image ----- In the example above, Lot 3 is encumbered with a right-of-way easement in favor of Lot 2. This means Lot 2 is the dominant land, and Lot 3 the servient land. Thanks to this easement, the owners of Lot 2 can use part of Lot 3 to access the public road.

This situation remains unchanged after a sale. In fact, the new owner of Lot 3 must respect the easement, while the new owner of Lot 2 continues to benefit from it.

For validity, there must be useful proximity between the two properties. However, they do not need to be adjacent. They must, however, belong to different owners.

In principle, the servient land is passive. Its owner must tolerate the agreed use, such as allowing the neighbor to pass. Some easements also impose obligations, such as maintaining the access road.

An easement may arise (art. 1181) from :

• A contract (often included in a real estate sale);
• A will;
• The law

Easement vs. Right of Way : What’s the Difference?

Let’s revisit the previous example : if the owner of Lot 3 had refused to burden their land with an easement, the owner of Lot 2 could have claimed a right of way, pursuant to article 997 of the Civil Code of Quebec, if the property was completely landlocked. This right of way obliges the neighbor to grant access to the public road in exchange for compensation for the harm suffered. Unlike an easement, this right ends as soon as it is no longer necessary (for example, if a new road is built).

An easement, on the other hand :

• Generally does not involve compensation,
• Constitutes a real right attached to the property itself, and
• Is not revocable at will: it remains attached to the properties as long as it is useful and registered in the land register.

Conclusion

The easement of passage is a key legal tool that differs from the right of way. Its permanent nature, lack of compensation, and attachment to properties rather than individuals make it unique. Although often perceived as a constraint, easements play a vital role in ensuring harmonious coexistence between property owners. A good understanding of their functioning is therefore essential for any property owner or prospective buyer.

To better understand your rights in real estate law, do not hesitate to consult our firm. Our team can assist you with your procedures and provide advice tailored to your situation.