In Ontario, there are four categories of easements, commonly called rights of way, which may arise in land disputes: (1) express rights of way; (2) prescriptive rights of way; (3) implied rights of way; and (4) equitable rights of way. You may find yourself seeking legal advice in regard to one or more these categories of rights of way when neighbourly friendliness is no longer there. Often, this occurs in the County of Haliburton when there is a change of ownership of the user of the right of way or of the owner of the land upon which the right of way travels.

Express rights of way are really a contract between the owner of the land and the user of the right of way. Deeded rights of way are an example. These rights of way are often permanent in nature for cottage access but they may also be temporary in nature. An example is access over property to an antenna tower for cell phone service so long as the tower is there. This type of express right of way may be deemed abandoned or terminated once the antenna is removed from the land.

Prescriptive rights of way are rights of way created by actual use over a period of 20 years. These rights of way must be established by court order and they are hard to establish, partly because 20 years of evidence is not easy to find. Previous owners or users may have moved to another province or, even to the celestial climes where they cannot return to give evidence. But once established, they operate like express rights of way. One difficulty with these rights of way is whether they can increase in use from summer season use to four seasons use, as is now happening in the County with cottage owners moving here permanently.

Implied rights of way and equitable rights of way are rarer categories of rights of way. The implied type occurs when it is clear that there is an intention between the parties to create a right of way but it never gets created. Or the right of way will be implied when the right of way is one “of necessity,” that is, you need to get from point A to point B. The equitable type arises where it would not be fair to allow the owner of the land to deny the right of way. For example, the int