An easement on property in Ontario gives someone else a right to use part of your land for a defined purpose, most often a right of way to pass over a driveway, lane or path. Whether the neighbour can also park on it depends first on the wording of the registered easement, read in light of the circumstances when it was created. Ontario courts have often found that a right to pass does not include a right to park, but the answer turns on the facts. Before you firm up a purchase, ask your lawyer to read the actual easement document.
This article draws on the paper “Ever Evolving Easements” by Sarah J. Turney and Janet Lau of Fasken LLP, presented at the Ontario Bar Association’s 2026 Ontario Legal Conference. The cases below are those discussed in the paper. Where we describe the authors’ views, we say so.
Key Takeaways
- An easement is a right to use someone else’s land. It stays with the land when the house is sold.
- Courts read an easement like a contract: the words of the grant come first, considered with the circumstances that existed when it was made.
- A court may add “ancillary rights” that are reasonably necessary to use the easement. Parking is sometimes, but not usually, one of them.
- Recent Court of Appeal decisions apply a strict necessity test. A right that is merely convenient is not enough.
- The servient owner can make some changes to the easement area. A complaint usually succeeds only if the change substantially interferes with the purpose of the grant.
What is an easement on property in Ontario?
An easement is a right to use land you do not own. It needs two separate parcels: the dominant land, which gets the benefit, and the servient land, which carries the burden. The right must benefit the land itself, the two parcels must be owned or occupied by different people, and the right must be clear and certain.
A right of way is the most common example: a right to pass over a shared driveway, a laneway behind a row of houses, or a road through a farm to a cottage. Because an easement attaches to the land, a new owner of the servient property takes the property subject to it, and a new owner of the dominant property gets the benefit.
How do Ontario courts decide what an easement allows?
Courts start with the wording of the document that created the easement, read in light of the circumstances when it was granted. If the words are clear, the court will not use outside facts to change them. The parties’ private, unstated intentions are not used. Later events, such as a deck built years afterwards, generally do not change the scope.
The Court of Appeal for Ontario set out this approach in Fallowfield v Bourgault (2003). Two houses were separated by a four-foot strip with a mutual easement for repairs. The court held that the circumstances when the grant was made governed, and that a deck and patio built later were irrelevant to what the easement covered.
In Reddick v Robinson, 2024 ONCA 116, the Court of Appeal confirmed that the contractual interpretation principles from the Supreme Court of Canada’s decision in Sattva apply to easements, and excluded a witness’s evidence as a party’s subjective understanding. One judge dissented on that point.
Does a right of way include the right to park?
Not automatically. A right of way is mainly a right to pass and repass. Parking is included only if the wording covers it, or if a court finds parking is reasonably necessary to use the easement in the circumstances. Ontario decisions have gone both ways, so the specific document and facts matter.
The cases discussed in the paper show the range:
- Parking allowed. In Boone v Brindley (2003), the Court of Appeal upheld a finding that cottagers could park on a right of way over a farmer’s land. The trial judge found the right of way was the only topographically feasible place to park.
- Parking allowed by wording. In Square-Boy Limited v City of Toronto, 2017 ONSC 7178, a right of way “for all purposes” over a former parking lot was held to include the right to permit parking for access to commercial premises.
- Parking not allowed. In MacRae v Levy (2005), the right of way was granted in 1940 and the cottage was built in 1953. Parking was not necessary when the grant was made, so it was not an ancillary right.
- No parking on a mutual driveway. In Kirby v Otulakowski, 2021 ONSC 3298, neighbours could drive over the strip between their houses but had no right to park there, because parking would substantially interfere with the right of way.
- Short stops only. In Soares v Café Regional Bar and Grill Inc, 2013 ONSC 7939, the court held that on those facts stopping for under 15 minutes was permissible, but longer parking interfered with other users’ rights.
What are “ancillary rights” and how strict is the test now?
Ancillary rights are extra rights a court reads into an easement because they are reasonably necessary to use it, such as paving a lane or building a required fire exit. The courts now apply a strict test. The right must be necessary to use and enjoy the easement, not merely reasonable or convenient.
In Primont (Castelmont) Inc v Friuli Benevolent Corporation, the Court of Appeal upheld a declaration that an easement “for the purposes of vehicular and pedestrian access and egress” did not include a right to park. The neighbouring parties had dealt with parking in separate agreements with the City, and the long-term care facility relying on the easement still had some parking of its own.
In 1711811 Ontario Ltd v Buckley Insurance Brokers Ltd, 2025 ONCA 56, the Court of Appeal upheld a finding that an easement for vehicles to reach a loading dock gave no right to park beyond transitory stops. The authors read Primont as a narrowing of the ancillary rights doctrine, with more weight on the words of the grant and less on surrounding circumstances.
Can the owner block or change the right of way?
The owner of the servient land still owns it and may use it, but cannot substantially interfere with the easement holder’s use for the purpose stated in the grant. A minor change that leaves the right of way usable for that purpose is usually not enough to bring a claim.
In Weidelich v de Koning, 2014 ONCA 736, homeowners built structures that encroached on a private laneway that carried a right of way “for the purpose of vehicular ingress and egress.” The width of the laneway was not affected, and the Court of Appeal held there was no substantial interference. In Buckley, lowering a tunnel’s height by two inches did not stop vehicles reaching the loading dock, and the claim failed. There is no mechanical test; each case turns on its facts.
What should I check before buying a house with an easement in Ontario?
Ask your lawyer to pull and read every easement registered on title, not just its title in the parcel register. Compare the description with a survey and with how the land is actually used. If the wording is unclear, or the neighbour uses the strip in ways the wording may not allow, raise it before your conditions expire.
Practical steps for buyers, including newcomers buying their first Canadian home:
- Read the words. “Access and egress,” “free passage” and “for all purposes” can lead to different results.
- Look at the ground. Note cars, sheds, fences or gates on or near the easement area, and ask the seller who uses it.
- Check for side agreements. The authors point out that parking, fencing or repair rights dealt with in a separate contract may lead a court to read the easement more narrowly.
- Ask about title insurance. Ask your lawyer what the policy does and does not cover for your property. Our article on title insurance in Ontario real estate transactions explains how it fits into a purchase.
- Think about your plans. A garage, addition or fence near the easement could raise an interference issue.
Easement review is one part of the work covered in our step-by-step guide to buying property in Ontario. If you are buying from outside Canada, see also our guide to buying property in Ontario as a non-resident.
What if my property benefits from an easement?
If your house relies on a right of way over a neighbour’s land, such as a shared driveway or a cottage access road, read it just as closely. Your rights are limited to what the grant allows, plus anything a court would find necessary. Do not assume you can park, widen or pave without checking.
The authors’ advice to lawyers drafting new easements is to describe the intended present and future uses as precisely as possible, because courts following Primont are likely to limit the easement to what is written. If you are negotiating a new easement or a shared driveway agreement, that advice applies to you too.
Frequently Asked Questions
Can my neighbour park on a shared driveway easement in Ontario?
Only if the easement wording allows it, or a court finds parking necessary in the circumstances. In several Ontario cases, a right to pass over a shared driveway did not include a right to park.
Does an easement stay with the property when it is sold?
Yes. An easement attaches to the land, so a buyer of the servient property takes it subject to the easement, and a buyer of the dominant property gets its benefit.
Can I put a fence or structure on a right of way on my property?
Possibly, if it does not substantially interfere with the use stated in the grant. Courts look at the facts, so get advice before you build.
Ask us about your matter
Tell us where your file stands and we will reply within two business days. Please do not send documents or identification numbers in this first message.
Disclaimer: This article is for general information only and is not legal advice. Ontario real estate, tax and estates law change frequently, and every matter turns on its own facts. Reading this article does not create a lawyer–client relationship. Obtain advice tailored to your situation before you act.
Talk to an Ontario lawyer. BridgePoint Law advises individuals and businesses across Canada — and on Canada–US–China cross-border matters — on Ontario real estate purchases and easements. Book a consultation with our team in Toronto and Kingston. We work in English, Mandarin, and Cantonese.