Easements—interpreting the use and extent
Easements—interpreting the use and extent

The following Property practice note provides comprehensive and up to date legal information covering:

  • Easements—interpreting the use and extent
  • What use does the easement permit?
  • Is the easement limited by its physical condition?
  • Will the easement survive a change or intensification of use?
  • Can the easement be lost if the user changes?
  • Can a right of way by horse and carriage be used by motor vehicles?
  • Does a right of access include a right to park?

Easements—interpreting the use and extent

The use and occupation of land often depends on the land in question having the benefit of easements — for example, a right of way or a right of drainage. These rights may have been granted expressly or claimed by prescription or implied into the original transfer of the land.

As the ownership or use of land changes over time, it frequently becomes necessary to consider the nature and extent of the easements which have been granted or acquired. A purchaser of land needs to know that the easements benefitting the land will be sufficient for its particular needs. An owner of servient land may feel that a new or increased use of an easement by the dominant tenement amounts to ‘excessive user’.

There is no hard and fast rule when it comes to interpreting easements; each one turns on its facts. However, the starting point with an expressly granted easement will always be the deed granting the easement which the court will interpret in its entirety and in its context. Unless clearly directed otherwise, the court will construe the grant in favour of the grantee or owner of the dominant land.

By contrast, an easement acquired by prescription or an implied easement will be read in the context in which it was acquired or created.

What use does the easement permit?

In certain

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