An easement or covenant is a legal agreement that allows the owner of a parcel of land to grant rights to others for a designated use.1 In Canada, except for Quebec, covenants and easements are authorized by either common law or statute. 16 Easements grant the right of access to a passageway through a property.3 In common law, an easement is attached to the land that benefits from the easement. Hence, the easement belongs to who owns the land. 16 Easements and covenants can serve as important strategies in climate change adaptation planning. For example, as an avoidance measure, a municipality may acquire a conservation easement to inhibit development in coastal areas that are susceptible to sea-level rise and flooding due to storm surges. Additionally, a covenant can be negotiated with landowners to prevent the construction of hard structures such as docks and sea walls that can prevent the migration of marshes and dunes inland. 5

How it works

Types of easement and covenants

  • Conservation easements are legal agreements that are registered on the title between a landowner and a qualified organization, e.g., a conservation organization, land trust, or government agency. The easements provide long-term protection for the property. Some conservation easements may provide protection for as much as 999 years. 12
  • Property easements of prescription apply to rights that have been enjoyed for 20 years without interruption or consent by a servient landowner. However, specific requirements must be met before property easement rights can be enjoyed. For example, if the property owner provides the user with permission every 20 years, easement by prescription does not arise.
  • An express grant means that a right of way has been expressly granted and that the right will be registered on the title in a land registry. Express grants typically apply where the owner of a servient property grants an easement for the benefit of one or more properties
  • An implied grant is a legal document that provides for the establishment of an easement when it is necessary for the use and enjoyment of property. For example, if a property owner severs a lot but does not register an easement for access and the lot that is severed is landlocked. 13,14

Benefits

  • An easement or other restriction can be limited to a particular part of a site, a particular purpose, or a specific period.
  • The owner can retain ownership of the property and may be able to use areas, not at risk.
  • The cost for a covenant or statutory right-of-way is typically much less than a fee simple acquisition.
  • A covenant may be used in conjunction with other tools such as a subdivision, building, or land use regulation.
  • A conservation easement may be considered a charitable gift by the Canada Revenue Agency.
  • A covenant may be negotiated as part of the development approval process with no direct cost to the local government.

Challenges

  • Once established, an easement cannot be used in a manner that is contrary to the purpose for which it was created.
  • An easement may not be removed easily. Even if the dominant user is not using the easement this does not constitute sufficient grounds to release the easement.
  • Hydro easements may limit the use of a landowner’s property. Hydro companies have the right to enter a property to lay cables, or erect poles 13
  • The establishment of an easement is likely to lead to a decrease in future property value 15
  • An annual compensation or a lump sum payment may be required to secure the easement or statutory right of way process or servitude. 17

Example projects

Coastal South Carolina Rolling Easement

SC, USA

Along the coast of South Carolina, a rolling easement system was implemented on the seaward side of the setback line using the Beach Front Management Act in 1990.5 A rolling easement typically rolls landward to allow for the migration of coastal vegetation. Thus, it restricts property owners from using hard shoreline protection.6 The easement line is defined by the new vegetation line.7 This tool has been implemented across several coastal communities in the United States.

Texas Open Beaches Act

TX, USA

In 1959, the Texas Open Beaches Act (TOBA) was passed to maintain public access along the Gulf shores through a rolling easement concept.8 In the TOBA, a rolling easement is defined as the area between the vegetation line and the mean low tide line. Therefore, public access to beaches is not static.9 Like many other rolling easements, the TOBA prohibits property owners from using hard shoreline protection that would impede public access to a beach.10 Ownership of property does not change with the TOBA; however, it requires landowners to protect the public’s right of access.11 The rolling easement is critical to the migration of the Gulf’s coastal wetlands which provides a habitat for many endangered species.

Citations


  1. 1.

    The Arlington Group Planning Architecture Inc., et al. Sea Level Rise Adaptation Primer. pp. 53. https://www2.gov.bc.ca/assets/gov/environment/climate-change/adaptation/resources/slr-primer.pdf



  2. 2.

    Ibid, 53.



  3. 3.

    Ibid, 53.



  4. 4.

    Ibid, 55.



  5. 5.

    Bergeron, Mary. “Coastal South Carolina.” Louisiana Resiliency Assistance Program, Louisiana Resiliency Assistance Program, 6 Nov. 2017, https://resiliency.lsu.edu/case-studies-blog/2017/11/6/coastal-south-carolina.



  6. 6.

    Ibid.



  7. 7.

    Ibid.



  8. 8.

    “Rolling Easements & the Texas Open Beaches Act.” Coastal Resilience, https://coastalresilience.tamu.edu/home/wetland-protection/policy-framework/bay-and-ocean-side-submerged-lands-some-fundamental-differences-in-law-and-management/the-texas-open-beaches-act-an-exceptional-example-of-a-rolling-easement/.



  9. 9.

    Ibid.



  10. 10.

    Ibid.



  11. 11.

    Ibid.



  12. 12.

    Thompson, M. J. (n.d). CONSERVATION EASEMENTS. Ontario Nature-Federation of Ontario Naturalists. https://ontarionature.org/wp-content/uploads/2017/10/Conservation_Easements.pdf



  13. 13.

    Humingbird Progressive Legal Counsel. (n.d). Why Are You On My Land? Property Easements In Ontario Are Forever (Almost). https://www.hummingbirdlaw.com/property-easements/



  14. 14.

    Little et al. (2004). EASEMENTS, COVENANTS AND SIMILAR RIGHTS IN BRITISH COLUMBIA – AN OVERVIEW. http://saltspringrealestateagent.com/wp-content/uploads/2012/06/DWL_AMW_MCM_EASEMENTS_COVENANTS__SIMILAR_RIGHTS_IN_BC.pdf



  15. 15.

    Murray Wise Associates LLC. (2019). Conservation Easements – Some Things To Think About. https://murraywiseassociates.com/conservation-easements-some-things-to-think-about/



  16. 16.

    Environment Canada. (2004). CONSERVATION EASEMENTS, COVENANTS AND SERVITUDES IN CANADA. A Legal Review. http://nawcc.wetlandnetwork.ca/conseasecov04-1.pdf



  17. 17.

    Arlington Group Planning and Architecture Inc. (2013). SEA LEVEL RISE ADAPTATION PRIMER A TOOLKIT TO BUILD ADAPTIVE CAPACITY ON CANADA’S SOUTH COASTS. https://www.cip-icu.ca/Files/Awards/Planning-Excellence/Sea-Level-Rise-_Final_Report-MAIN.aspx

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