The Spatial Extent of Lesser Rights in Land: Development Agreements, Site Plans and Restrictive Covenants as Modern “Easements”

Abstract

The interpretation and use of information relating to the spatial extent of land ownership (fee simple title) has traditionally been the subject of products which professional land surveyors in Canada have provided. The primary source of such information has been the circumstances noted “on the ground” and the title record that is available for review. These service products have been generally referred to as “Real Property Report” and “Plan of Survey”. Most jurisdictions in Canada require surveyors to mention or show lesser interests in land on a Report or Survey Plan and specifically mention easements and rights of way as the type of interests to be indicated. In this paper, the types of lesser interests in land which have a spatial extent component are considered in terms of modern usage. By relating instances in which the courts have had to deal with clarification and the imposition of a remedy, the traditional treatment of showing only easements and rights of way appears to be no longer sufficient. This paper uses examples of development agreements, site plans and restrictive covenants in establishing the need to revisit the definition of lesser rights in land that must be shown on a Report or Survey Plan. Although some lesser interests have a spatial extent that is the same as that of the fee simple parcel, this is often not the case. The need to understand the broader range and nature of lesser rights in land—as well as new ways of interpreting and communicating their spatial extent to clients—are clear opportunities for the enhancement of professional surveyors’ products and services.