What an easement or right of way actually is
An easement is a right to use someone else’s land for a specific purpose. The land that gets the benefit is often called the dominant land. The land that carries the burden is the servient land. The owner of the servient land still owns it. They just cannot stop the other owner from using it the way the easement allows.
A right of way is the most common kind of easement on a house. It lets one owner cross another’s land, usually to reach a garage, a backyard, or a lane. A mutual driveway is often two rights of way that mirror each other. Utility easements, for hydro, gas, telephone, cable, or sewer lines, are the other kind most buyers run into.
Most easements are tied to the land, not to the people who signed them. When either house sells, the right or the burden usually goes with it. That is why a real estate lawyer in Toronto reads them on every purchase, even when the listing calls the driveway “mutual” and everyone seems to get along.
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How mutual driveways usually work in Toronto
Mutual driveways are common on older Toronto streets, especially between semi-detached houses and detached houses on narrow lots. Often the property line runs down the middle of the driveway. Each owner owns their own strip and has a registered right of way over the neighbour’s strip, so both can get a car to the back.
That is the typical setup, not the only one. Sometimes only one house has the right of way. Sometimes the rights were registered decades ago and the wording is short. Sometimes nothing was ever registered, and the shared use is just a habit between neighbours. Each of those leads to a different answer when there is a disagreement or a sale.
The listing will rarely tell you which one you have. The parcel register, the registered documents themselves, and the survey will.
How easements are created in Ontario
Most residential easements are created in writing. A transfer or easement document is registered on title, often describing the area by reference to Parts on a registered reference plan. That document sets the rules: where the easement runs, what it is for, and sometimes who repairs it.
Some easements are not written at all. Courts can find an easement implied in certain situations, for example where land would otherwise have no access. Others are claimed by long use, called prescription. Ontario’s Real Property Limitations Act deals with claims to a way or other easement that has been actually enjoyed, without interruption, for a full twenty years. Use that happens with the owner’s permission generally does not support a prescriptive claim.
Most Ontario land is now in the Land Titles system. Section 51 of the Land Titles Act says that no right or interest in Land Titles land that is adverse to the registered owner can be acquired by any length of possession or by prescription. So, as a rule, a neighbour cannot earn a new right of way over Land Titles land just by using it for years. A right that was fully earned before the land moved into Land Titles can be a different question, and that takes a lawyer looking at the history.
Not every easement shows up on the parcel register
This surprises people. Section 44(1) of the Land Titles Act says that registered land, unless the register says otherwise, is subject to certain rights that may be subsisting, and the list includes “any right of way, watercourse, and right of water, and other easements.”
In plain terms, an easement that never made it onto the register can, in some cases, still bind the land. The parcel register is the starting point, not the whole answer. A survey, a look at the property, and the right questions to the seller fill in what the register leaves out. Our guide on how a title search works in Ontario covers what the register does show.
What the Agreement of Purchase and Sale says about easements
The standard OREA Agreement of Purchase and Sale (Form 100) has a title clause in paragraph 10. It requires title to be good and free of registered restrictions and encumbrances, except as the agreement provides, and it lists exceptions. Two of them are about easements:
“(c) any minor easements for the supply of domestic utility or telecommunication services to the property or adjacent properties; and (d) any easements for drainage, storm or sanitary sewers, public utility lines, telecommunication lines, cable television lines or other services which do not materially affect the use of the property.”
So an ordinary utility easement usually is not grounds to walk away. A right of way that lets a neighbour drive across your land is a different kind of easement and is not in that list. Whether it gives the buyer a valid objection depends on the whole agreement, including anything added in a schedule and anything the buyer already agreed to accept.
Timing matters too. The agreement sets a requisition date for title objections. Paragraph 10 says that, except for a valid objection made by that day and any objection going to the root of the title, the buyer is “conclusively deemed to have accepted Seller’s title.” A buyer who learns about a problem driveway after that date usually has much less room. Our walkthrough of the Agreement of Purchase and Sale explains the other key dates.
What a buyer should check before firming up
Start with the listing and ask the agent directly whether the driveway is mutual or the property has any right of way. If the answer matters to how you plan to use the house, build time for a lawyer’s review into your offer. A condition in the offer is the cleanest way to get that time.
Once you have an accepted offer, your lawyer should pull the parcel register and read the actual registered documents behind each easement entry, not just the one-line summary. The wording decides what the right covers. Ask the seller for any survey they have, and compare it with what you see on site: fences, gates, sheds, parking pads, and where cars actually go.
Ask about the neighbours too. Is there a parking arrangement? Has there been a dispute? Who clears the snow and who paid for the last repaving? A seller generally has to be honest when answering, and our guide to seller disclosure in Ontario explains where those duties start and stop.
Title insurance is worth discussing as well. It can cover some losses from title and survey problems, subject to its terms and exclusions. It does not remove an easement, and known problems may be excluded. See title insurance in Ontario for how a policy works.
Common mutual driveway disputes
Parking is the big one. A right of way is usually a right to pass over the land. Whether it also lets anyone park there depends on the wording of the registered document and the facts. Many disputes start when one neighbour parks in a way that blocks the other’s access to the back.
Repairs are next. Older rights of way are often silent on who maintains the driveway, who pays to repave it, and how the cost is split. Neighbours who agree on that in writing usually have fewer fights later.
Changes cause the rest. A new fence or gate, a narrowed driveway, a front-yard planter, a garage rebuild, or a laneway or garden suite can all affect the other owner’s right to pass. Before a renovation that touches the driveway, check what the easement allows and whether permits are needed.
Utility and municipal easements
Utility easements are usually quieter. They may let a utility or the municipality run lines or pipes through part of the lot and come onto the land to service them. Most owners never notice them.
They matter when you want to build. A pool, an addition, a deck on footings, or a large shed may not be allowed over an easement area, or the easement holder may be able to remove it to reach their equipment. If you are buying with a project in mind, have the easement read and checked against the survey before you firm up.
For sellers: deal with it before listing
If your house has a mutual driveway or another right of way, gather the paperwork early: the registered documents, any survey, and any written arrangement with the neighbour. Tell your agent so the listing describes it accurately.
If something is off, such as a shared driveway with no registered right of way, a fence over the line, or an old arrangement nobody wrote down, talk to your lawyer before you list. Registering a new easement or a release takes a signed document, usually a reference plan from an Ontario land surveyor, and the cooperation of the neighbour and sometimes their lender. That can take weeks. Fixing it before a buyer’s lawyer finds it is usually faster and cheaper than fixing it under a closing deadline. For the wider picture of who owns what on title, see property law basics in Ontario.
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Frequently Asked Questions (FAQ)
Can my neighbour park on our mutual driveway?
It depends on the wording of the registered right of way and the facts. A right of way is usually a right to pass over the land, and it does not automatically include parking. If parking matters to you, have a lawyer read the registered document before you firm up a purchase or start a dispute.
Can a neighbour get a right of way over my land just by using it for years?
As a rule, not over land in the Land Titles system. Section 51 of the Land Titles Act says no right or interest adverse to the registered owner can be acquired by length of possession or by prescription. A right fully earned under the Real Property Limitations Act before the land entered Land Titles can be a different question, and it needs a lawyer to look at the history.
Can I remove an easement from my property?
Usually only with a signed release from the owner who benefits from it, which is then registered on title. Their lender may also need to be involved. Courts are generally slow to treat an easement as abandoned just because it has not been used for a while.
Can I back out of a purchase because of an easement?
Sometimes. The standard OREA agreement excepts minor utility easements and service easements that do not materially affect the use of the property. A right of way or another easement outside those exceptions may support a valid title objection, but it generally has to be raised in writing by the requisition date, and the rest of the agreement matters. Talk to your lawyer as soon as you learn about it.