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Friday, August 10, 2012

Update: Cottagers keep right-of-way over farm, but have duty to repair

I posted in early 2011 about a decision of the Ontario Court of Appeal concerning a lane used by cottagers located on a neighbouring farm (see March 18, 2011).  The Court of Appeal upheld the decision of a Superior Court Judge which ruled that certain cottage owners in Northumberland County had acquired a prescriptive easement over the laneway. The owner of the farm property does not use the lane and did not want to pay for upgrades to the lane. 

In a further ruling, Ontario Superior Court Justice Peter Lauwers has ruled that the cottagers (the owners of the "dominant tenement") "have the duty to repair Sunnybrae Lane that is imposed on them by the common law".  He also ruled that, "the duty is flexible and relates to the conditions on the ground as they appear from time to time."

In other words, the cottagers can use the lane, but it is their responsibility, and not the responsibility of the farm owner, to repair the lane when necessary.