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Discussion Starter · #1 ·
Recently purchased a vacant lot in a small town. The lot was originally located in smaller township that was dissolved to a larger town through annexation in the late 90s. The road to the lot was created through an private easement back in the 80s. Since annexation the municipality that took over has since maintained, and provided services (grading, garbage collection, plowing etc) onto the road. Public traffic also uses the road. Now looking to start building on the lot and running into issues with the "private" status of the road. How can a municipality spend public funds on a private road and not assume it? Reached out to lawyer(s) and there seems to be no clear explanation
 

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Grading, garbage and plowing can all be nice treat from works department to relative who lives on the road in a small town.

If it is a private easement, is there a legal reference plan that defines the metes and bounds of the land you hold easement rites on? It would be better to have easement right on title over the other land owners lands.
That way they endure on the sale of the other property.

Otherwise you could be sol if the fire department says how do we get there, etc.

Plus could need a public easement reference plan drawn to get power there and any land line for TV or internet.

Plus who does maintenance on this easement road if more that one person uses it?

Public access as in it links two public roads, or to a public water access? Then petition the town to make it a public road

Get access sorted first before sinking funds into a house is my option. It could drag on for quite a while though.
 

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Recently purchased a vacant lot in a small town. The lot was originally located in smaller township that was dissolved to a larger town through annexation in the late 90s. The road to the lot was created through an private easement back in the 80s. Since annexation the municipality that took over has since maintained, and provided services (grading, garbage collection, plowing etc) onto the road. Public traffic also uses the road. Now looking to start building on the lot and running into issues with the "private" status of the road. How can a municipality spend public funds on a private road and not assume it? Reached out to lawyer(s) and there seems to be no clear explanation
Without knowing what province or territory the lands are situate, hard to say much.

From what you describe, the original owner of private lands granted an easement across the owner's land to give access to the lot you now own. That may have occurred because that owner subdivided his land (let's call his land "Whiteacre") and created your lot ("Blackacre"), retaining the remainder of Whiteacre. In the language of easements, Blackacre would have been the "dominant tenement", with the easement being for its benefit. Whiteacre bore the burden of the easement and was the "servient tenement". That is a typical easement scenario.

A bit puzzling in the facts you relate is the apparent role of the municipality. You say it provides services at taxpayers' cost, presumably and, as well, the public uses the road. How long is this road? If there is public user, it sounds like it provides access to more than your lot and other lots created by the owner of Whiteacre.

You speak of running into "issues". What would be the nature of said issues? Are you being enjoined from using it? Denied access to your lot? What? Do you happen to have a copy of the grant, including the plan as registered?

For now, here's a BC case that might serve as a primer on the nature and incidents of easements, at least in BC:

Birch v. Brenner S.C., Hinkson C.J.S.C., 2015 BCSC 466, Vancouver S128262, S138927, March 26, 2015 , 31pp., • See also appeal reasons regarding terms of order: 2017 BCCA 22.

Here is one pithy abstract from the full text:

[38] In Robinson v. Pipito, 2014 BCCA 200 [Robinson], at paras. 18 – 19, Willcock J.A., stated:

[18] This Court in Grant v. MacDonald (1992), 68 B.C.L.R. (2d) 332, adopted Lord Evershed’s description of the characteristics of an easement in Re Ellenborough Park, [1955] 3 All E.R. 667 at 673:

(i) There must be a dominant and a servient tenement:

(ii) an easement must accommodate the dominant tenement:

(iii) dominant and servient owners must be different persons: and

(iv) a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.

[The third requirement has now been abrogated by s. 18 of the Property Law Act, which provides that owners in fee simple may grant easements to themselves.]

[19] Mr. Justice Seaton, for the court, addressing the last criterion in Grant, accepted the proposition that where no proprietary interest or right in the property described in the easement is reserved to the servient tenement, the agreement does not constitute an easement. Adopting the words used in Shelf Holdings Ltd. v. Husky Oil Operations Ltd., [1989] 3 W.W.R. 692, 56 D.L.R. (4th) 193 (Alta. C.A.), also cited by the judge in this case, he held that an easement cannot amount to a claim “quite at variance with the property rights of the servient owner.”
 

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Discussion Starter · #4 ·
Yes there are 3 additional lots on this road/easement that are already developed. The maintaince is being done solely by the municipality. Our lot was severed from the lot holding the easements and no easement is on our title. Despite the road leading to and past our lot. The road/easement connects/is an extension of a public road
 

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And can you pls. elaborate on the difficulty you are facing in all of this? Are you being told you cannot use the easement and you are otherwise landlocked?

And are you reticent to say where in Canada this is? Provincial laws differ.

I'll try to say more later. A bit preoccupied at the moment.
 

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No not on your lands.

But if your access is not off of a public right of way, you want easement rights on whoever owns the land the road runs on.

Now the road might be what is called an un-opened road allowance, if it runs between original section lots of a original township survey when the land was registered as the township. In that case the right of way exists, but might not yet be formally declared as a public road.

Again - really press the Town as to who owns the road allowance if they are doing all the road maintenance on it.

If there are other lots on the road who are they paying taxes to? Follow the money.

Look at the title survey to your lot- it might hold clues as well.Like are there existing bars and hat survey placed them? Soon you will be needing a surveyor if the town does not step up here.
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