Note: The following paragraphs do not apply to statutory easements created pursuant to section 111 of The Real Property Act. See Statutory Easements for a discussion of easements created pursuant to that section of the legislation.
Easements and party wall agreements can be registered in one of two ways: they can either be registered pursuant to section 76 of The Real Property Act, or they can be registered by way of a caveat. Each method of registration has its own requirements.
Registered pursuant to section 76
The requirements for an easement registered pursuant to section 76 of The Real Property Act are:
1. The lands affected must be clearly defined. It must affect either all of the lands in the servient land owner’s title or a defined portion thereof. Where only a portion of the lands are affected this portion must be identified using either a “metes and bounds” description acceptable to the examiner of surveys or a plan of survey. Registrations with sketches included or attached will not be accepted.
2. The easement document must be executed by all of the registered owners of all of the lands (dominant and servient). This execution must conform to land titles rules governing execution and witnessing, including proper parties and proper officers.
See Witnessing rules.
3. The consents of all persons who have a registered interest in the lands must be attached. Consents will not be required from the holders of statutory easements. These consents must be executed in accordance with land titles rules governing execution and witnessing.
See Witnessing rules.
4. With the exception of party wall agreements and declarations, the dominant and servient lands must be reasonably proximate, though they do not need to be adjoining. For party wall agreements and declarations, the lands must be adjoining.
5. A statutory declaration containing evidence under The Homesteads Act from the owners of the servient lands (and the dominant lands if there are cross easements) must be attached. Where appropriate, consents under The Homesteads Act must also be attached.
Where the dominant and servient lands have common ownership, easements and party-walls can be created by declaration rather than by agreement. Because these are pure creatures of statute (at common law the dominant and servient lands must be owned by different parties), they must be registered in their own right and pursuant to s. 76 and not attached to a caveat.
See section 76(2), The Real Property Act
Describing an “easement area”
Given that Manitoba operates under a Torrens system, where there is a requirement to have certainty of title, it must be determinable from the record what lands an easement actually affects. An easement is allowed to be restricted to some of the lands in a certificate of title, but it may not be uncertain. As such, descriptions such as “all that portion as may be necessary” is not determinable or certain and is therefore unacceptable.
There are three acceptable options:
1. Easement over all the lands in both the servient owner’s title and the dominant owner’s title, without any exceptions or attempts to limit or identify the specific location of the easement area (i.e. sketches, maps, photographs, etc.)
Example: “The Grantor hereby absolutely and irrevocably, and in perpetuity, grants the right, license and easement along, over and upon LOT 1 BLOCK 1 PLAN 1 WLTO to the Dominant Owner for the purpose of…”
2. Easement over part of the lands in the servient owner’s title described with reference to a Plan of Easement/Survey.
See sections 127(1) & (4), The Real Property Act
Example: “The Grantor hereby absolutely and irrevocably, and in perpetuity, grants the right, license and easement along, over and upon all that portion of LOT 1 BLOCK 1 PLAN 1 WLTO shown as Easement on Plan _________ WLTO (Deposit 1234/20) to the Dominant Owner for the purpose of…”
3. Easement over part of the lands in the servient owner’s title described by an acceptable metes and bounds description. An acceptable metes and bounds description must be clear and simple and lines must be parallel to existing survey fabric. This description may be pre-approved by the Examiner of Surveys or their staff.
See sections 127(1) & (4), The Real Property Act
Example: “The Grantor hereby absolutely and irrevocably, and in perpetuity, grants the right, license and easement along, over and upon THE NLY 50 FEET PERP OF THE SLY 100 FEET PERP OF LOT 1 BLOCK 1 PLAN 1 WLTO to the Dominant Owner for the purpose of…”
Registered by caveat
While it is to everyone’s benefit, there is no rule that requires the underlying agreement to be attached to a caveat giving notice of an easement (other than a caveat for a statutory easement). Further, where such an agreement is attached, it will not be not examined.
A caveat for an easement has only two requirements:
1. It must contain a clear statement as to the interest claimed (easement, right-of-way or party-wall); and
2. It must list the dominant and servient lands.
When easement or party wall is selected from the drop-down list, the eCaveat will not lock unless it contains both dominant and servient lands.
These minimal requirements do not apply to caveats creating statutory easements. Please see Statutory Easements for a discussion of the requirements for these registrations.
Easements that arise from the circumstances and actions of the parties, those that are not created by agreement, can only be registered by way of caveat. This would include easements by necessity, prescriptive easements and easements by proprietary estoppel.
Discharge
As noted above, a section 76 registration can only be discharged with the consent of all owners and all encumbrancers of all affected lands. A caveat protecting an easement can be discharged by the current owner of the dominant lands.
Discharges from the party who originally registered an easement by way of caveat will not be accepted if they no longer owner the dominant lands. Similarly, an agent who signed an easement caveat can only sign the discharge of it if the ownership of the dominant lands has not changed.
Assignment
Because easements run with and benefit the dominant lands, they do not need to be assigned on a sale of the dominant lands. Further, given that these agreements benefit the owner of the dominant lands and cannot benefit any other party, these easements cannot be assigned to a party who is not the owner of the dominant lands.
Given that easements do not need to be assigned to a purchaser upon the sale of the dominant lands (nor do they need to be assumed by a purchaser of the servient lands) and given that they cannot be assigned to a party who is not the owner of the dominant lands, the district registrar will not accept for registration an assignment of an easement (agreement or caveat).
Easements cannot be assigned because they are un-assignable. An interest similar to an easement which is assignable is a license. Unlike an easement, a license is not an interest in land.