The Ontario Court of Appeal recently decided a case about one party’s right to use another party’s real property (“real estate” as it is more commonly called): 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 (CanLII). The case surrounded the doctrine of prescriptive easements. An easement is an interest in land that is owned by another party which entitles the holder of the easement to a specific limited use or enjoyment of that land. It can also be defined as a certain right to use the real property of another person without possessing it. Examples are the authority granted to utility companies to enter, install and maintain utility lines and equipment; provision of pathways across two or more pieces of property; or permission given to a person to fish in a pond privately owned by another person.
A prescriptive easement, on the other hand, is an easement upon another person’s real property acquired by continued use for 20 years without permission of the owner but with the knowledge of and without objection of the owner, created under the Limitations Act (Ontario). For example, if a person takes a walk across the land of another person for 20 years, with the knowledge of and without objection of the owner, an easement is created.
In 1043 Bloor Inc. v. 1714104 Ontario Inc., the plaintiff and the parties who owned its property prior to it, used a laneway on its neighbour`s property to access parking spaces behind its building from 1980 to 1986. The previous owner of the property now owned by the defendant neighbour did not object. In 1987, the plaintiff asked the defendant’s predecessor to sign a right-of-way agreement over the lane. The defendant refused (the “1987” incident). The plaintiff’s predecessor continued to use the laneway. In 1989, the defendant’s predecessor posted “private driveway” signs along the lane. After purchasing the property from its predecessor in 2008, the plaintiff sought a declaration that it had a prescriptive easement and right of way over the lane on the basis that its previous owners had uninterrupted, open use of the lane for at least 20 years before April 2003, when the plaintiff’s property transferred to the land titles system.
The Court of Appeal upheld the trial judge’s decision to dismiss the action on the basis that the plaintiff’s predecessor’s request for permission to use the laneway in 1987 was essentially an acknowledgment that his use was not “as of right” or “under a claim of right”. The Court of Appeal further concluded that the trial judge was not wrong in finding that that there had been continuous and open use of the lane during the relevant time period, and that the 1987 incident interrupted the prescriptive period.
The Court determined that to acquire an easement by prescription, the use of the property must be “as of right”, meaning that the use did not proceed in the face of protests from the owner of the property that may be seen as challenging the claimed right. Therefore, the Court further concluded that the posting of the “private driveway” signs in 1989 was an overt act of protest that indicated that the use was disputed. Thus, the posting of these signs was sufficient to interrupt the running of the prescriptive period.
As you can see, one’s rights in another party’s real property can be a rather technical legal matter. If you have questions about a right to use someone else`s property or other real estate matter, please contact Andrea Kelly.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
