Do I Have to Worry About Minor Utility Easements on the House I am Buying? The short answer is no, you do not have to worry. As long as it is minor. The standard Agreement of Purchase and Sale has fixed text that handles restrictions registered on Title. This text is fixed, and is not meant to be changed in an offer to purchase. It ensures that the Buyer purchases a property that has a “good, clean” title, free from all registered restrictions, charges, liens, encumbrances, and defects, with some exceptions.
One of those exceptions is:
The key word is minor. Often cables or wires are buried underground along lot and/or fences lines. These minor easements in favour of the utility companies are designed to allow utilities to be fed to your property as well as neighbouring properties. Access to these utilities is also necessary for maintenance. Courts have found that as long as these easements comprise no more than 5 to 7 percent of land area and are located along the sides, front or back of the property, the Buyer must accept them. In fact, since these easements show up in the legal description of the property as S/T #999999, it doesn’t even have to be detailed in the listing remarks.
As your Realtor, I will always discuss easements registered on a property you are buying, so that you can make an informed decision as the whether the easement will affect your planned use for the property. After all, an easement is a material fact about the property.
What is not minor is a mutual driveway, an easement going through the middle of your entire backyard, or a laneway right-of-way. These are major easements. Major easements can affect how you use your property. For example, if you are planning to install an in-ground swimming pool and you have a major utility easement running through the middle of your back yard, you would not be able to go ahead with your plans in that location.
You should always consult your lawyer on an issue like this. Your lawyer will review all easements registered on title and advise you if it is a concern, but it is better not to wait until the Title Search date to uncover these surprises. If the easement is major, and the Seller cannot correct it, you have two choices:
1. Accept the easement, close the transaction, move in to the house and live with it.
2. Refuse to accept the easement, terminate the transaction through a mutual release, and keep looking for another house. Your deposit will be returned to you in full.
It is important to be informed. You don’t want to rule out a perfectly good house, because of a minor utility easement. It is hard enough to find the house that “ticks most of your boxes”. Don’t fret over something that is extremely common and perfectly normal.
– Chip Barkel, Toronto Real Estate. Extraordinary Service. Top Results.