A parcel of land (lot) is landlocked (enclaved) if it has no access to the public road or if this access is insufficient, difficult or impassable. Public roads include not only provincial and municipal streets and roads, but also any road leading to them.

The situation may arise for various reasons: the parcelling of a lot as part of a division of an estate, a subdivision, an expropriation, etc. It may even occur following a natural disaster, making access to the public road that existed previously no longer possible.

A landlocked property has virtually no value. It is therefore in the collective interest to provide a mechanism to remedy the situation.

There are two types of enclaves: legal and economic.

Legal Enclave

A legal enclave is said to exist when the property, or estate, has no physical access to a public road. For example, this will be the case if a parcel of land is bound on all sides by lots owned by third parties.

However, in the event that a neighbour allows you to pass over their property to gain access to a public road, your property will not be considered to be landlocked. This is known as an “allowance road,” because this neighbour has no legal obligation to let you pass over their property and tolerates your use of their property. The enclave will only begin when said neighbour’s tolerance ceases.

Economic Enclave

An economic enclave exists when considerable and unreasonable construction costs are required to gain access to the public road. To determine if the cost is unreasonable, the road construction price is compared to the value of the landlocked parcel of land.

Courts tend to consider an enclave to be economic when the cost of providing access to the public road is more than 15% of the value of the property. The cost of the work includes, but is not limited to, tree cutting, blasting, materials, culverts, landscaping and maintenance, and access to public utilities such as electricity.

Obtaining an Easement

What are your options when your property is legally and/or economically landlocked and your neighbour refuses to grant you an allowance road?

By law, you have the right to demand passage.

Thus, upon judicial application, the court will grant a legal easement allowing the dominant lot (the landlocked lot) the right to pass over the servient lot (the neighbouring lot).

Several criteria come into play when determining the basis of the easement. As a general rule, the right-of-way will be enforced against the neighbour from whom the right-of-way may be most naturally claimed, taking into account the condition of the premises, the locational advantage of the landlocked property and the inconvenience that the right-of-way causes to the land that is subject to it. Public use of a right-of-way for ten years will establish an absolute presumption (and a rebuttable presumption for less than ten years) that it is the most advantageous route for the landlocked parcel of land and the least disadvantageous for the servient land.

However, it is important to mention that an easement cannot be subject to acquisitive prescription. Thus, even if a person has been using a road for more than 10 years, they cannot claim any right to use that road. Consequently, only an easement granted by the court (legal easement) or obtained by contract (conventional easement) protects access to a landlocked parcel of land.

Liability of the Owner of the Dominant Lot

The beneficiary of the right-of-way must make provision for and assume responsibility for all the work needed to ensure that this right is exercised under conditions that are the least damaging to the land that is subject to it. This also implies that they must assume the costs of maintaining the right-of-way. However, this responsibility may be shared if the road is used by several parties.

It is also possible that an indemnity may have to be paid to the owner of the land used to compensate for the prejudice caused by the servitude on their property.

Exception to the Right-of-Way of a Landlocked Parcel of Land

If your property has become landlocked as a result of the division of the estate, either by partition, will or contract, the partition may not be claimed against the neighbour from whom the easement would have been most naturally claimed. In such cases, the right of way must be claimed from the co-partitioner, heir or contracting party who caused the division, and thus, the enclave.

For example, in the case of a succession, an estate is divided into three lots shared by each of the heirs. This subdivision results in one of the three lots being landlocked. The heir who receives this landlocked lot will only be able to obtain access over the other two lots, even though it might have been more convenient to require access from another neighbour.

Termination of the Right-of-Way

The right-of-way ends when it ceases to be necessary for the use and exploitation of the landlocked parcel of land. For example, when the landlocked parcel merges with a neighbouring parcel accessible by public road.

Conclusion

If you are the owner of a landlocked parcel of land, it would be best to obtain a conventional easement from a neighbour. If no amicable agreement is possible, only the court may grant you access to your land.

We are always available to provide you advice and help you obtain an easement agreement.