Weilers LLP

More Excitement About Easements

More Excitement About Easements

July 5, 2022

By Nick Melchiorre

An easement is a document that grants specific rights of use of a part of the owner’s property to a non-owner. There are many different types of easements, some which are very common and well known but can still create excitement, such as utilities easements granted in favour of municipalities or other utility companies. Even easements to create shared driveways can lead to disputes.

More complex easements require more caution and care in drafting.


We have written recently about the importance of knowing whether you have an easement or a license. An easement is always better than any license. An easement creates rights in the land which may be transferable and enforceable against purchasers of the land. A license is usually able to be terminated upon reasonable notice and is only a contract between the current owner and the person receiving the license.

It is also important to understand that not all easements are created equally. It is important that if you are obtaining an easement, you consider your plans for future use of the property and attempt to obtain an easement which is broad enough flexible enough to accommodate future use.


This is illustrated by cases such as Primont (Castelmont) Inc. v. Friuli Benevolent Corporation. The issue arose over the rights created by mutual easements granted by adjoining property owners which allowed them to park on each others’ lands. Municipal parking space requirements frequently lead to such agreements. In the Primont case, one of the properties contained a banquet hall which was busy at night but quiet during the day and thus could easily share its spaces with the apartment building next door. The concern arose from a plan to build a new long-term care facility in the open space between the banquet hall and the apartment building.

The new lot being created would be landlocked, so all three parties agreed to a mutual access easement.

The municipal planning process leading to the construction of the long-term care facility led to an agreement to create 325 parking spots including 84 parking spots available to users of the long term care facility. The zoning bylaw called for 311 parking spots to be created but did not say where the parking spots would be or in what terms they were to be created.

The easement agreement granted by the banquet hall owner to the developer was a nonexclusive easement “for the purpose of vehicular and pedestrian access and egress.” It did not mention parking.

There was no disputing that the long-term care facility users did not have rights to park on the apartment building property – the apartment building need all its spots, and more.

The owner of the banquet hall did not dispute that there was a contractual agreement to permit the parking but denied that there was an easement.


Contractual rights are not property rights. Rights under an easement are property rights. As with a license, contractual rights are not as good as property rights. In this case, the developer was concerned about the possible loss of daytime use of the spaces at the banquet hall if the banquet hall use was ever changed to something that required more daytime parking.

Use should not be conflated with or confused with property rights.

The judge held that the wording of the easements was clear and unambiguous. The easements deal with access and egress only.

Fortunately for the developer, nothing in the planning documents required that parking must be dealt with as a property right rather than a contractual right.

There was also not an easement by necessity created. The landlocked parcel needed access by necessity but could create the parking spaces contractually.

The developer also raised an argument based on proprietary estoppel. However, there was no evidence to support that claim.

The judge concluded that the developer was worried about future planning and use concerns that would be more appropriately dealt with in a future planning application when and if the owner of the banquet hall ever decided to alter its use. As the judge pointed out, unless and until a redevelopment proposal is made, it is impossible to know how that will affect the needs for parking.


The moral of this story is that if the developer had wanted an easement which included parking, he should have made sure it was drafted in that fashion.


If you are a property owner or developer and shared use of adjoining property is an important issue to you, you need a lawyer who is familiar with the issues. The commercial and real estate lawyers at Weilers LLP have that experience. We have a proud tradition of drafting and interpreting easements.

If you find yourself in a dispute over an easement or other property rights, our litigation team works closely with our real estate team to protect your rights. We love tough cases and have won some that were very tough indeed.

There is never a bad time to give us a call and see if we might be the right lawyers for you.