The Mortgage Instructions Toolkit provides practical guidance for lawyers responding to lender requests in residential real estate transactions. This page addresses easements and rights of way.

The situation

Easements and rights of way may be registered on title, or may be hidden underground (in the case of public or private utilities), or may have been created by use over time. A property owner may not even be aware, for example, that the driveway, fence, landscaping or even all or part of a building is partially on the neighbouring property, or that there is a utility line running through the property.

A lawyer is not in a position to give an opinion on the marketability of title with respect to easements and rights of way beyond what has been identified by a due diligence search of the relevant land registry records and a review of any survey. When title insurance is being put in place, the lawyer should not give any opinion on the marketability of title. See Opinions on title or title insurance for more information.

Sample lender instructions

[If no title insurance] It is your responsibility to ensure that discrepancies in … easements (other than routine easements for public utilities provided no part of the building on the Property is affected) are referred to us with your opinion as to its/their effect on the marketability of title.

Practice Guidance

• Do all the necessary title registry searches.
• Speak to your borrower client about what they know about the property to try to identify potential issues.

No title insurance

• When you are completing a report to the lender, you should identify the applicable searches done and any surveys reviewed. You should also provide the documents you found and any additional relevant information provided by the borrower.
• Specify that your opinion is based solely on the identified searches, documents reviewed and any additional information provided by the borrower.  

Title insurance

• Do not provide an opinion on marketability. Identify the applicable searches done and the documents found, and provide any additional information provided by the borrower. Provide the details of the title insurance policy to the extent necessary.

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