Statutory easements are, by operation of The Real Property Act, easements for all purposes. They are unique for several reasons:
• There is no requirement for dominant lands.
• Statutory easements come into being only once the constituting document has been registered at land titles.
• Because the rights created by the agreement benefit a person and not dominant lands, these easements can be transferred.
Requirements for statutory easement agreements
1. The grantee may register either the agreement or a caveat with the agreement attached. The examination requirements are the same regardless of the method of registration.
2. The agreement must be between the grantee and either the current owner of land or a person entitled to be the owner of lands who becomes the owner by the time the easement is registered. Note: keep this in mind when ordering your series for registration.
3. The rights granted by the agreement must be of the type specified in section 111(3) of The Real Property Act (which includes easements for municipal purposes, pipelines and power generation and wind farms).
4. The grantee must be one of the parties specified in the section (which includes the Crown, Bell MTS, Manitoba Hydro, rural municipalities, and other parties carrying on those activities specified in section 111(3)).
5. The registration must be accompanied by a statutory declaration satisfying the district registrar that the grantee is one of the eligible grantees specified in the legislation. This declaration can be as simple as a statement made on the caveator’s signature page that the party is an eligible grantee within the meaning of section 111(1) of The Real Property Act.
6. The agreement must contain evidence from the grantors under The Homesteads Act and, where the situation warrants, Homesteads Act consents.
Titles for statutory easements
As a result of the legislative changes, title can now issue for statutory easements. The title issuing process will be very similar to the issuance of titles for pipeline easements. In order to have a title issued, the owner of the statutory easement must file a request using the Request/Transmission form (Form 15.1).
As a condition of issuing title, the district registrar may require a plan to be filed for the statutory easement. A plan will always be required if the statutory easement is for a pipeline.
Titles for statutory easements issue free and clear of encumbrances on the affected title, other than those relating to the easement itself.
Statutory easement titles may be encumbered, transferred (to another eligible grantee) and they may be subdivided.
To cancel the title to a statutory easement, the current registered owner of the easement title must file a discharge of the easement. If the title to the statutory easement is affected by encumbrances, the owners of the encumbrances must either discharge their encumbrances or consent to the discharge of the easement. In addition, a request to cancel the easement title must be filed. This request can be from either the owner of the statutory easement, the owner of the underlying freehold lands, or the solicitor and agent for either of these parties.
Where no title has issued, the owner of a statutory easement can discharge the easement in the ordinary course.