Written By Simon Crawford and Mykala Way

When you grant an easement over your lands to another, who has the obligation to maintain the lands and the improvements on those lands? One might argue that it is the grantor of the easement—that the owner has the obligation to ensure that the easement is maintained so that the grantee can always use the easement as intended. Or, one might argue that it is the grantee, on the basis that the grantee is deriving a benefit from the easement and should maintain the improvements on the easement lands to a certain standard. After all, if the grantee is enjoying the benefit of the easement lands, should it not exercise some degree of care in the maintenance of those lands and improvements in them?

Or, one might argue that it is neither—that the law does not default to either result in the absence of an agreement by the parties on what to do.

Which is to say, that the answer is not intuitive.

A recent decision of the Ontario Superior Court of Justice is a good reminder of just how unintuitive the law can be in this area.

In McKinlay v Chatham-Kent¹ (McKinlay), the Estate of John McKinlay (the Estate) sought summary judgment against the Municipality of Chatham-Kent (the Municipality) regarding responsibility for maintaining a drainage system located in a 30-foot easement that ran alongside the highway on the one side, and along the Estate’s agricultural lands (the Property) on the other.

The easement, granted on October 22, 1959, was for the purpose of accommodating the installation of drainage tile (the Easement). The drainage easement agreement provided:

controlled access…for the installation of a header tile to be laid within the limits of the above easement and on the vendor’s property;

It is agreed that the vendor shall have a claim for loss of crops if any during the installation of the above tiles;

The Easement and the header tile to be constructed within it were necessary to allow proper drainage of the newly constructed Highway 401. The Easement was registered on February 8, 1960, and the header drainage tile was installed during the summer of 1960.

Over the years, the drainage system deteriorated, leading to water retention on the Property and resulting in significant crop losses. John McKinlay, before his passing, repeatedly notified both the Province of Ontario and later the Municipality about the deteriorating condition. Despite these notifications, the Municipality refused to maintain or repair the drainage system, prompting John McKinlay to undertake the repairs himself in 2017-2018 at a cost of $60,036.10.

John McKinlay's subsequent attempts to resolve the issue with the Municipality proved futile. The Municipality maintained that it had the right, but not the obligation, to maintain the drain. After McKinlay's death in July 2023, the Estate continued the legal action, seeking a declaration that the Municipality was responsible for maintaining the Easement and seeking reimbursement for the repair costs and crop losses.

The Estate argued that the Easement implied a duty on the Municipality to maintain the drainage system, while the Municipality contended that no such duty existed.

Given that the easement in question was, in fact, a contract, the Ontario Superior Court of Justice (the Court) started with well-established principles of contractual interpretation.

The Court turned to the Supreme Court of Canada case, Creston Moly Corp. v Sattva Capital Corp.² to guide its analysis. It found that Sattva clarified and restated the basic principles to be followed in the interpretation of contracts, with the overriding concern being to determine "the intent of the parties and the scope of their understanding".

To determine what the parties' understanding was, the Court looked to the language of the easement agreement. On its face, the easement agreement provided for the right of the grantee to maintain the header tile drains but did not explicitly impose an obligation to repair.

The Court relied on the decisions in Jones v Pritchard³ and Esco v Fort Henry Hotel Co. Ltd, et al⁴, to come to the legal conclusion that, without express language to the contrary, the party benefiting from the easement does not have a duty to keep the easement in good repair. Instead, it enjoys the right to enter upon the easement to maintain and repair as an ancillary right to the easement. Accordingly, as the easement language imposed no such contractual obligation on the grantee, the Court found that the Municipality did not have an obligation to repair the drain.

This isn’t new law. There is fair precedent.

In Kasch v Goyan⁵ (1992), a case frequently cited for its analysis on easements, a dispute arose between the owners of adjacent summer homes, with the petitioner bringing an action to cancel an easement that allowed the respondent beach access on his property. During its analysis, the court considered the nature of the rights and duties between dominant tenement owners (the parties benefiting from an easement) and servient tenement owners (the parties granting an easement), stating the following: 

the owner of the servient tenement has no obligation to repair the construction made on the area designated in the easement. Equally, the owner of the dominant tenement does not, in a strict legal sense, have a duty to keep the structure in good repair. However, if the grantee does not keep it in a safe and workable condition, he or she may be liable for trespass, nuisance, or in negligence if an accident should occur due to the unsafe state of the structure. The rationale for such a finding is that if the structure is kept in such an unsafe state that it causes damage to someone, it is not being fairly or properly exercised as an easement by the grantee.⁶

This principle was reiterated by the Court in the case 1637063 Ontario Inc. v 2404099 Ontario Ltd.⁷, which involved a dispute regarding the use of an easement. Markham Road Medical Centre (the Medical Centre), as owner of the dominant tenement, wanted to pave parts of its easement to allow for vehicle access. JD Development, as owner of the servient tenement, wanted those parts to remain grass. Both parties disputed the division of costs, with the Medical Centre submitting that JD Development should be required to contribute to the repair and maintenance costs of the easement. The Court, in its analysis, came to the conclusion that "under the common law, neither the Medical Centre nor JD Development has an obligation to maintain or repair the pavement on the easement. However, the Medical Centre as the dominant owner has the right to enter onto the servient lands to carry out the necessary work to maintain and repair the pavement"⁸. The court, in coming to this finding, clearly distinguishes between the rights and the obligations of easement owners, confirming that a dominant tenement owner has a right, not a duty, to maintain and repair its easement.

This, however, does not mean that a servient tenement owner is out of luck when it suffers damage as a result of the dominant tenement owner's actions or inactions, as demonstrated by the Court in its discussion on nuisance in McKinlay.

Although the Estate did not succeed on its motion for summary judgement, the Court went on to consider the possibility of nuisance. According to established case law⁹, where a dominant tenement commits a nuisance or acts negligently in a manner which damages a servient tenement, the dominant tenement is liable for the cost of repair without affecting the existence or continuation of the easement.

Therefore, given the unresolved issue surrounding the claim for damages in nuisance, the Court decided that summary judgment was not appropriate. The case would require further examination of the facts and legal arguments related to nuisance. It therefore dismissed the motion for summary judgement but allowed the action to continue.

In Sunnybrae Springbrook Farms Inc. v Trent Hills (Municipality)¹⁰, a motion was brought for summary judgement to determine the rights and interests of various parties with respect to a roadway easement that provided cottagers with access to their property. Though the determination for exactly how the roadway's repair costs should be apportioned was referred to the trial judge, the court did confirm that "where a dominant tenement commits a nuisance which damages the servient tenement, the dominant tenement is liable to repair the servient tenement's property, without affecting the existence or continuation of the easement itself. Where the nuisance is separately actionable, it should have no impact on the creation or continued existence of the easement."¹¹ The tort of nuisance therefore seems to be the avenue through which the Estate, and other similarly injured parties, may find relief from the harmful actions and inactions of dominant tenement owners.

So, what is the lesson here? The lesson is that when drafting the terms of any easement, all matters of maintenance, improvement and removal of improvements must be expressly addressed in the terms of the easement. Principles of contract apply, and a court will interpret the terms of an easement as it would any other contract. There is no implied contractual duty on either the grantor or the grantee to maintain or improve the easement.

That said, where the actions or inactions of one or the other party cause harm to the other or its property, then claims may exist under the laws of nuisance, trespass or negligence. But this is no different than would exist between any neighbours, whether or not an easement is in the mix.

Do not assume that, just because your neighbour is using your lands under the terms of an easement, that they have any obligation to maintain or repair those lands or improvements thereon. Absent causing you or your property harm, they may have no obligation to do so.

Not their problem.

Download PDF