Thursday, September 29, 2016

Heritage easements 101 — Easements come to Ontario

Writing about the Rockwood Academy a few posts back I mentioned my first job with the province — one with responsibility for the pioneering provincial heritage easements program.

Before that, in 1979, I spent a summer with the Stratford Local Architectural Conservation Advisory Committee (LACAC).  At some point my boss, the redoubtable city/county archivist Jim Anderson, brought to my attention a bill to amend the Ontario Heritage Act.

The amendment concerned a minor change to the easement provisions of the Act — this was the very first amendment to the OHA since its passage four years before. [Note 1]

It was also the first time I’d heard of heritage easements.

Easements are one of our two principal protection mechanisms (designation of course is the other).  They’ve been around for 40 years now, but where did they come from?

Unlike many other parts of the 1975 OHA, the heritage easement powers were an innovation without antecedents from Ontario or other provinces.  They were inspired by and based on precedents from south of the border, where easements for preservation purposes go back at least to the late 1940s.  Being voluntary agreements to protect (usually) private property, easements were an approach particularly suited to the American perspective and experience, where government regulation of private property for public benefit is more suspect than in Canada. [Note 2]

Historically, easements — also called restrictive covenants — evolved as a type of contract between two parties with respect to the use of land.  Say Party A wants some access or control over the property of Party B (typically a neighbour).  Party A could of course offer to buy the property.  But for a number of reasons an outright purchase might not be feasible or even desirable.

Instead Party A could try to negotiate the acquisition of an easement, one giving Party A the desired access or control over the property of Party B.  And not just Party B, but anyone who acquired the property after them: the easement is intended to outlast a particular individual’s ownership and “run with the land.”

Over the centuries the courts developed rules to prevent abuses. For the easement to run with the land and be legally enforceable against later owners it had to meet strict requirements:
  • The purchaser or new owner of Party B’s property had to have notice of the easement
  • The easement had to benefit Party A’s (adjoining or “appurtenant”) property in some way — by providing river access, for example, or an unobstructed view
  • The controls or obligations the easement imposes on Party B could not include a positive burden (requiring expenditure to meet it, like maintaining a bridge), but only negative burdens (requiring Party B not to do something, like obstruct Party A’s view by constructing buildings or planting trees).
(The parcel of land that benefits from the easement — Party A’s property — is sometimes called the “dominant tenement”; the “servient tenement” is the land — Party B’s property — that is subject to or encumbered by the easement.)

But if Party A is not a neighbour or does not even own property, there can be no valid easement.

This is where statutory easements come in — laws are passed to get rid of the old common law limitations and provide greater flexibility and scope.  But only for certain parties and for certain purposes!

Take electricity production and distribution, for instance.  The Electricity Act, 1998 says that “an easement in favour of a generator, transmitter or distributor for the purpose of generation, transmission or distribution does not have to be appurtenant or annexed to or for the benefit of any specific parcel of land to be valid.” [Note 3]

Likewise with heritage conservation. Section 22 of the OHA says:

(1) Any easement or covenant entered into by the [Ontario Heritage] Trust may be registered against the real property affected in the proper land registry office.

(2) Where an easement or covenant is registered against real property under subsection (1), such easement or covenant shall run with the real property and the Trust may enforce such easement or covenant, whether positive or negative in nature, against the owner or any subsequent owners of the real property and the Trust may enforce such easement or covenant even where it owns no other land which would be accommodated or benefited by such easement or covenant. (emphasis added)

You can see how subsection 2 keeps the old requirement of notice (by requiring registration on title), but lifts the other two limitations: the taboo on “positive” burdens and the requirement of owning benefiting land. [Note 4]

Section 37 of the Act — giving local municipalities the ability to acquire statutory easements — has similar wording. 

But not identical: there is an important difference between the provincial (OHT) and municipal easement powers.  While municipalities may acquire easements “for the conservation of property of cultural heritage value or interest”, the scope of the provincial power is broader — essentially qualified only by the Trust’s broad mandate for “the conservation, protection and preservation of the heritage of Ontario.”  In other words, the Trust easement power extends beyond cultural heritage.

We’ll see next time what this has meant for the evolution of provincial and municipal easement programs.

Note 1: The amendment anticipated a potential conflict between the controls provided by an easement and a heritage designation on the same property. Identical subsections 22(4) and 37(5) were added; the former now says: “Where there is a conflict between an easement or covenant entered into by the Trust and section 33 or 34, the easement or covenant shall prevail.”

Note 2: Part of this is the Fifth Amendment to the U.S. Constitution, added in 1791, which includes a prohibition on government taking private property for public use without “just compensation.” There is no comparable provision in the Constitution of Canada.

Note 3: See section 42.1.

Note 4: When the Ontario Heritage Foundation (as the Trust was then known) began signing easement agreements on properties around Ontario and presenting them for registration, the reaction of the local land registrar was frequently, what’s this? Quoting chapter and verse from section 22 was usually persuasive.