Easements and Gazette roads

Had the pleasure of having Wayne from Edmonton over the other day out looking at land on Salt Spring and the conversation turned to Gazette roads and or easements.   It’s an odd topic but one that comes up when buying a large rural lot.  One never really knows what they are getting unit one does a little digging.  The first thing you must know is a gazette road will not show up on a title search.  One may think they are buying 50 acres of total privacy only latter to find out there is a road going right through their property.

Here is an example of a 1930 gazette notice;

MUSGRAVE ROAD Notice is hereby given that the following described highway, 40 feet in width, is hereby established: Commencing at the intersection of the centre line of Isabella Point Road and the easterly boundary of Section 13, Range 1, South Division of Saltspring Island; thence in a general southerly direction to the west boundary of the North-west Quarter of Section 42; thence north-westerly to a point in the North-west Quarter of Section 51; thence in a general westerly direction to a point in the South-west Quarter of Section 50; thence southerly to a point on the west boundary of the South-east Quarter of Section 44; thence northwesterly to a point in the South-west Quarter of Section 49; thence …; and having a total length of 9.4 miles more or less, as shown on a plan on File 2280 in the Provincial Department of Public Works, Victoria, B.C.

Gazette roads are very vague and not necessarily surveyed and not always registered on titles.  In 1997 a local SaltSpringer found out the hard way that his land had a gazette road over it and  1997 forest appeal commission  was fined for cutting the trees on the road allowance of said road.

Yesterday the The British Columbia Real Estate Association (BCREA) sent out this legal update notice that covers historical easements.

OLD IS NOT NECESSARILY OBSOLETE

On occasion, buyers become interested in properties that are subject to historical easements, some over one hundred years old. The Property Law Act provides that a court may cancel an easement where the easement is “obsolete.” Some buyers, and occasionally their advisors, assume that anything old must, for that reason alone, be obsolete and proceed to purchase those properties on the assumption that it will be easy to convince a judge that an old easement is an obsolete easement. Such is not always the case, as illustrated below.

In 1912, an owner sold part of his land on Vancouver Island. The only access to the parcel conveyed (Parcel A) was through the part retained by the seller (DL80). Unfortunately, no legal right of access was provided through the original transaction in 1912. In 1919, the lack of a legal right of access was addressed and the owner of DL80 granted an easement over DL80 for the benefit of Parcel A. The easement granted the owner of Parcel A, and her heirs and assigns, “the uninterrupted use of and passage in and along a 12 foot wide right of way with carts, vehicles or cattle at all times forever thereafter…” The recitals in the document indicated that the easement was being granted because the owner of DL80 “did not grant access to the land described in the said conveyance dated November 25, 1912…”

For over 85 years the easement was the only way to access Parcel A. In 2004, DL80 was subdivided and a road was built that provided direct road access to Parcel A. Despite the road construction, Parcel A’s owner — a developer — continued to advertise to prospective purchasers of strata lots on Parcel A that they would be able to use the easement for direct pedestrian access to the beach.

The owner of the DL80 parcel subject to the easement applied to have the easement cancelled pursuant to Section 35(2) of the Property Law Act which provides that an easement may be cancelled where the court is satisfied that “because of changes in the character of the land, the neighbourhood or other circumstances the court considers material the registered charge or interest is obsolete.”

The judge initially hearing the application to cancel the easement concluded from the recitals in the document that the right of access was limited to that which was necessary and convenient and due to the construction of the road, access over the easement area was no longer necessary. As such, she determined that the easement was obsolete and could be cancelled. The BC Court of Appeal (BCCA) disagreed and overturned her decision.¹

The BCCA confirmed that recitals to an easement should only be referred to for the purpose of clarifying ambiguity. There was nothing ambiguous about the operative portion of the easement. There was no limitation on its duration. It was to be operative “forever thereafter.” There was no language suggesting that the easement would terminate upon the provision of alternate access.

The BCCA concluded that had that been the intention of the parties, the solicitor drafting the easement would have provided express language to that effect. In the absence of express limiting language, the easement remained in full force and effect. The BCCA cited a number of previous decisions which concluded that where an easement was still in use it did not become obsolete merely upon the availability of alternative access.²

A buyer purchasing property that is subject to an historical easement should never assume that, simply because the easement is old, it will be considered obsolete and thus cancellable. If the cancellation of the easement is of importance to the buyer, they should seek legal advice before purchasing the property.

Brian Taylor
Bull Housser LLP

“Copyright British Columbia Real Estate Association. Reprinted with permission.” BCREA makes no guarantees as to the accuracy or completeness of this information.”

When buying rural property it is not always so cut and dry.  There are many little details that should be looked into.  For those that like to read here is a little article written by lawyer Mary MacGregor about public access through deeded land.  legal opinion on public roads Mary goes through all the steps such as start with the property title then go to the original crown grant.  FYI all land in BC has an original crown grant which specifies what the crown actually sold or did not sell.  Did you know some waterfront crown grants held back one chain along the waterfront for public use.  If you do not know a chain is 66 feet or about 20 meters.  That would be a little shocking to find out one had a “public” strip 66 feet wide in front of their home they just bought and did not know about.   For those that have not seen a crown grant here is an example of one 129416-I Crown Grant They usually come with a map and if there was is gazette road or chain of public land that would usually show up on the crown grant or maybe there are other historical documents in the local archives.   It is well worth your time checking all the details before one buys rural land.   It’s usually a good idea to have a competent real estate agent and lawyer who are working for you and helping you make the right decision based on all available information.

Cheers Scott Simmons

On Salt Spring Island BC

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