Easements and Right-of-Ways – why are they important in row units?

Well, I just had an interesting experience. I was looking at making an offer on a row unit which is the middle unit of three. It is fully fenced and backs onto NCC bike paths. The NCC’s metal fence that runs along the bike path forms the back fence of this unit.

There is a gate in the shared back yard fence between this unit and one of the units beside it. A gate usually connotes an easement or right of way, permitting the middle unit owner reasonable access through the neighbouring property when they need it.

This could mean the middle unit owner bringing around a lawn mower from time to time, for example, that is stored in a garage or shed at the front of the house, and is too inconvenient or too big to bring through the house.

It can mean letting trades have access to bring in their materials and equipment when installing new roofing or siding or windows at the back of the house. Landscaping would be another reasonable access use, as it is impossible to bring wheelbarrows of sand or dirt through the front door.

But just because there’s a gate and a registered easement or right of way, it doesn’t mean you can use it for anything.  Your kids can’t decide to use it to play hide and seek in the neighbour’s back yard without the neighbour’s express permission; that’s not reasonable.

Anyway, I did up the offer and I checked the legal description of  this property and the ones on either side of it. No easements or right of ways appeared in the legal descriptions, which meant that access rests on the goodwill of the adjacent owner.

I contacted the listing agent who said that the same neighbour owned both the adjacent units and was a pretty genial  guy, but he suggested I do my due diligence, and I agreed.

I decided to go take a look at the back of the property from the vantage point of the NCC bike path  before I went any further. Standing on the bike path, I could see that the gate in the fence between the two units was actually blocked on the neighbour’s side by a cable.

So I tracked down the neighbour and told him I was planning to put in an offer, and the kinds of things I would be doing, which included  some much-needed siding repairs, but down the road could include replacing the back deck and maybe a window. I asked if he would be comfortable with my trades using his yard to gain access for that work.

He was very polite but also very definite that he would  not give that permission. In fact, he told me he plans to block the gate altogether to make it clear there is no implied consent to its use.

And he has the absolute right to do so, because there is no right of way or easement requiring him to provide access. If you don’t have that legal obligation, access rests on goodwill alone, and in this case, there is no goodwill, even though I agree with the listing agent that the neighbour seems like a very nice guy.

So, the person who buys this property is going to have a big problem when it comes time to tear out the deck, or replace the windows or roof, or do the siding repairs,  because they will have to bring all their equipment and materials  through the front door to get to the back yard. The front entrance to this unit is very tiny, so forget being able to bring  a ladder through, much less siding, or deck boards. It’s going to be a nightmare.

I was very happy I did my homework, as I won’t be putting in an offer after all, but I wonder how many prospective buyers think to check into things like that when they get caught up in the emotion of multiple offer situations?

A home inspector might have recognized there was an access issue, but most home inspectors don’t talk to the neighbours to find out what kind of goodwill they’ll extend when repairs might be needed. And even if this owner had said “no problem,” the next one might not. If there is not a registered easement or right of way on title, you have no protection and no recourse if access is denied.

Take a good look at access, then,  before you buy. Make sure if there is a gate, that it hasn’t been blocked by an adjacent neighbour. Sometimes easements extend through more than one property; make sure the end unit hasn’t blocked the entry point either.

Be sure, then, to do your due diligence and if you’re not sure, ask your realtor put a clause in the offer giving you and your lawyer enough time to determine whether  access is going to be an issue.  Believe me, I’ll sleep well tonight knowing I dodged a bullet.

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