Repair right in easement does not create obligation to repair

By Ray Mikkola ·

Law360 Canada (June 11, 2024, 2:49 PM EDT) --
Ray Mikkola
Ray Mikkola
The Ontario Superior Court of Justice in McKinlay v. Chatham-Kent (Municipality), 2024 ONSC 2811, has recently held that a right by a dominant tenement owner in an easement, which includes a right to repair a drain located on the servient lands does not create an obligation by the dominant tenement owner to make such repair.

The facts are as follows: In 1959, the plaintiff farmer’s predecessor granted an easement to the Province of Ontario to install a drain on part of the farm that abuts Highway 401. The easement contained a provision that the “easement will be registered and turned over to the Township of Tilbury East,” a predecessor of the defendant municipality. Although the easement to the province was silent on the right to repair, the document that assigned the easement from the province to the township included a right to enter on the servient lands for the purpose of “keeping and maintaining them at all times in good condition and repair.” The drain became plugged, which resulted in flooding of part of the plaintiff’s farm, causing crop losses. The plaintiff expended money to repair the drain and sought an order for summary judgment against the defendant for money damages for failure to maintain and repair the drain. The motion judge held that the absence of any express obligation in the easement regarding a duty to repair by the municipality was fatal to the summary judgment application. The case is noteworthy for a few reasons:

1. It involves an assignment of the benefit of easement rights other than by way of the sale of the dominant tenement lands. This is a highly problematic aspect of the facts of this case, and the case does not stand as legal authority for any such assignment. Generally, an easement cannot be assigned because it automatically “runs with the land.” The dominant lands enjoy the easement benefits over the servient lands, in which servient lands are encumbered by the rights thereby created in favour of the owner of the dominant lands from time to time. An express assignment of the easement is therefore not only unnecessary, it may be antithetical to the purpose and legal foundation of the easement. For example, consider an easement over a
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neighbouring property for the purpose of accessing a garage in the rear yard of the dominant tenement owner. Such an easement is typically created by an express grant, which sets out a description of the dominant (benefitting) and servient (burdened) land. The easement exists solely for the benefit of the dominant land and describes a purpose that is capable of forming the subject matter of a grant (being a transfer of an interest in land). It may be terminated expressly by a voluntary release of easement (for example, when the dominant landowner relocates its garage to the front of the home and therefore no longer requires the easement) or it may terminate automatically either in accordance with its terms or by reason of merger (that is, where both homes become owned by the same owner). But such driveway easement could not be assigned to a third party (that is, to a person who does not simultaneously become the owner of the dominant lands) because the easement is necessary only because the owner of the dominant lands requires it in order to access the garage.

In other words, the easement is not a personal right of the dominant tenement owner to be assigned as the dominant tenement owner wishes. The driveway easement cannot be separated from, and its validity depends on, the ownership of the dominant tenement lands that benefit from the easement. In this case, the easement was transferred from the province to the municipality and was amended in the transfer document to include a provision respecting the right to enter on the servient lands to undertake repairs (which provision did not appear in the “initial” transfer of easement to the province) — apparently in like manner as if the province were the fee simple owner of the easement lands, all apparently without the involvement (and perhaps even without the knowledge) of the owner of the servient lands. The municipality did not become the owner of the dominant lands (Highway 401).

One wonders, for example, if and how the farmer (or its successors in title from time to time) could be responsible for repairs under the assignment of easement document if it had included a provision requiring the farmer as servient tenement owner to be responsible for repairing the drain. The validity of and legal basis for the assignment was not considered in the decision, likely because the parties had agreed that the easement and its assignment were valid.

2. An assignment of an easement to a third party other than by way of it automatically running with the land may occur only where the easement has been created as an “easement in gross.” Such easements are expressly described as easements in gross and generally do not have an express dominant tenement, although it appears that the inclusion of a dominant tenement land into what is expressly identified as an easement in gross does not thereby disqualify the easement as constituting an easement in gross. In this case, the easement appears not to have been an easement in gross, based on the analysis of the judge and his express finding that Highway 401 was the dominant tenement that validated the easement. Easements in gross may be accepted generally for registration pursuant to s. 39 (1)(b) of the Land Titles Act. Even had the easement been clearly set out as an easement in gross, it would not explain how it could have been amended on its assignment by the province to the municipality (by the insertion of the repair right). The authority to create an easement in gross is typically found in statute. For example, s. 91 (2) of the Municipal Act provides that an easement of a “public utility provided by a municipality does not have to be appurtenant or annexed to or for the benefit of any specific parcel of land to be valid.”  Except for easements in gross, the failure to include a dominant tenant renders an easement void, and it should not be accepted for registration.

3. Interestingly, the court indicated that the responsibility to repair or maintain an easement may be determined by reviewing any provision in the easement document, which allocates such a responsibility to one of the parties to the easement. While it is possible that the allocation of such responsibilities may be enforceable between the original parties to an easement, positive covenants do not run with the title at common law (see Amberwood Investments Limited v. Durham Condominium Corporation No. 123 [2002] O.J. No. 1023 as more recently reaffirmed in Black v. Owen, 2017 ONCA 397).

Accordingly, even if the duty to repair had been included in the original easement, even in the clearest of language, such a positive duty could not likely be enforced against a subsequent owner (leaving aside for the moment the problematic issue of introducing the matter of repair in this case only in the assignment of the easement document). Importantly however, this case confirms that even in the absence of an express duty to repair, a dominant tenement owner may be liable to the servient tenement owner for damages in nuisance. Adopting the statement in a 1908 English case, the judge found as follows: “Thus, if the easement be to take water in pipes across another man’s land and pipes are laid by the owner of the dominant tenement and fall into this repair, so that water escapes onto the servient tenement, the owner of the dominant tenant will be liable for damages done by such water. Strictly speaking, I do not think that, even in this case, the dominant owner can be said to be under any duty to repair.”

Therefore, in the context of a nuisance claim, it may be possible for an aggrieved servient tenement owner to obtain a mandatory injunction directing the dominant tenement owner to undertake the positive action of repair. Courts have confirmed the availability of such mandatory orders to stop an ongoing nuisance (see Baumann v. Capello, 2024 ONSC 357, for a very recent example) and may thereby indirectly cause positive covenants to run with title without offending the rule in Amberwood and Black.  

4. The case confirms that an easement for the purpose of installing a service includes an implied right to enter the easement lands to repair the service.

Ray Mikkola is a partner with the firm of Pallett Valo LLPThe author would like to thank Alan Kay for his assistance and insights in the preparation of this article.

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