Easement and right of way

When a business sale includes the premises, the land may come with rights others hold over it. The Land Title and Survey Authority of British Columbia describes an easement as a limited right attached to land, and gives the example of a driveway crossing one owner’s land to reach another’s. Alberta’s Land Titles Act uses the phrase “right of way or other easement.”

Where easements appear

• British Columbia: under the Land Title Act, an easement made to benefit other land is endorsed against that land’s title, and a transfer of that land carries the benefit without express mention (s. 182). A statutory right of way is an easement without a dominant tenement, created in favour of a grantee listed in s. 218, such as the Crown, a municipality or a public utility.
• British Columbia makes an indefeasible title subject to a highway, public right of way or other public easement, among the other matters listed in s. 23(2).
• Alberta: a registered owner may sign an instrument granting an easement or right of way (s. 64(2)). Land under a certificate of title is also subject, by implication and without special mention, to any public highway, right of way or other public easement, and to any right of way or other easement granted or acquired under any Act or law in force in Alberta (s. 61(1)).

What to check or ask

Read the instrument behind each charge on the title search. Ask the seller whether the business relies on access or services across a neighbour’s parcel, and ask a lawyer whether any easement binds the premises without appearing on the title. This entry covers British Columbia and Alberta only; for premises in another province, ask a lawyer how that province’s land title law treats easements. See also whether zoning matters in a sale with real estate.