Easements, covenants, licences & profits as servitudes in Canadian common law: Escaping the quagmire

This dissertation focuses on four major defects perceived to exist in the law of servitudes in Canadian common law jurisdictions. The servitudes considered are: easements, covenants running with land, licences that are irrevocable, and profits a prendre. The four defects are: (1) the rule that an easement or running covenant must have a dominant tenement which is accommodated or benefited by the easement or covenant; (2) the rule that a positive covenant cannot 'run with land' so as to be enforceable against a covenantor's successor in tide; (3) the rule (now somewhat displaced) preventing irrevocable licences from running with land; and (4) the narrow view of the courts (especially in Ontario) of their power to modify or terminate servitudes after their creation. It is argued that at least three of these four defects could be overcome by fairly simple legislative changes, and that thereafter it would be easier for the courts to make other incremental changes in the law, with a view to allowing the law of servitudes to reach its potential as a device benefiting modern developments and communities.;The study proceeds by tracing the history and development of the servitudes in question, and the terminology used (Chapter I); examining specific examples of Canadian cases reinforcing the major defects (Chapter II); analyzing the history, doctrines, policies and theories underlying the existing rules (Chapter III); considering attempts by lawyers to overcome the defects (Chapter IV); looking at measures proposed or adopted in England, Ontario, the United States and New Zealand with the same object, as well as the question whether judicial reform is possible in Canada, or whether statutory reform is required (Chapter V); and drawing conclusions and making recommendations for reform (Chapter VI).