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Wednesday, October 15, 2014

Court declines to find that shared driveway right-of-way was abandoned



The drawing above shows three adjacent residential properties in Toronto (in blue, pink and yellow) along with a right-of-way that is shared by the three properties (in green).  The street adjacent to the three properties runs down the left side of the drawing; the right-of-way is a driveway that runs back behind the properties in an L-shape.
 
The owners of the blue lot wanted to use the driveway pursuant to the deeded right-of-way.  The owner of the yellow lot challenged this use on the basis that the blue lot owners had abandoned the right of way.  She claimed that she was entitled to park her car beside her house so as to block the laneway.  In fact, both the yellow lot owner and the pink lot owner (or their predecessors in title) had fenced off the right-of-way adjacent to their backyards.
 
The owners of the blue lot applied to the Superior Court of Justice for an order enforcing their rights to use the right-of-way.  In reviewing the application, the Court noted that the rights-of-way of the three lot owners were duly registered on title.  However, the registered owner of the right-of-way lands (the laneway) had passed away and none of his heirs were made parties to the application by the owners of the blue lot.  For that reason, Justice Myers stated, "I am reluctant to declare any rights in the laneway that may affect the owners' interests."
 
Justice Myers did comment that he would not find as a fact that the applicants (owners of the blue lot) or their predecessors in title abandoned their right-of-way over the laneway, but he did not think that he had the proper parties before him (including the owners of the laneway) to make a formal determination that the owners of the blue lot had not abandoned the right-of-way.  Justice Myers was prepared, however, to enforce the applicants' deeded right-of-way as against the other two residential lot owners (pink and yellow) in personam so that neither of those two owners would be permitted to block the laneway.  He specified that, "nothing herein is intended to bind the true owner(s) of the laneway and my order is expressly without prejudice to any and all rights of the true owner(s) to assert abandonment or any other causes of action or defence that he, she, it, or they may have against the [residential owners]."

Read the decision at: Currie v. Chatterton.