Subsequent agreement doesn't necessarily cancel out pre-existing prescriptive easement

"Good fences do not always make good neighbours." 

I wonder how many court decisions begin with that line or something like it - it seems like it must be a lot.  Madam Justice Gomery of the Ontario Superior Court opens her reasons with that line in a recent case involving a claim for a prescriptive easement in Ottawa.  Neighbours were in court disputing the space between their houses, each built sometime prior to 1928.  The houses are just over 14 feet apart, and a shared driveway runs between the houses.

Neighbour E had lived in the one house since 1980.  Neighbours P moved into the other house in 2003.  Notwithstanding that the driveway had been between the houses for the entire time Neighbours P had occupied their property, they went ahead in November, 2016 and built a fence down the middle of the driveway, just inside their own property line.  Of course, they were still able to use the driveway with the fence in place because they had sufficient space on their side.  On Neighbour E's side, a retaining wall was in place and the space between that wall and the fence was insufficient to allow him to use the driveway.

As noted above, the actual property line ran down the middle portion of the shared driveway.  Neighbour E brought an application for an order recognizing his right to use the full width of the (previously) shared driveway and requiring Neighbours P to remove their fence.  Neighbour E claimed that he had a prescriptive easement (one that arises through use over a period of time) over the driveway.  At issue was whether Neighbour E's enjoyment of the driveway (and that of his predecessors in title) had been with the permission of Neighbours P (and their predecessors in title).  In order for an easement to arise by prescription, the use of the land must be without the permission or objection of the owner of the land involved. 

To succeed in his claim, Neighbour E had to show that the owners of his property had used the shared driveway for a period of at least 20 years prior to 1996 (when the lands were converted into the Land Titles System, which no longer permits the creation of easements by prescription), with the knowledge of the neighbouring landowners, and without their objection or permission.  While Neighbour E had evidence showing such use prior to 1996, he had to deal with the fact that a previous owner had entered into an agreement in 1980 in which each neighbour (predecessors in title to the current owners) had given the other a right to use the shared driveway, and had agreed to share expenses, for a period of 21 years less a day.  Did this agreement mean that use of the driveway was with permission and could not, therefore, give rise to a prescriptive easement?  If an easement had been established prior to 1980, did the agreement cancel the easement out?

Justice Gomery found that the agreement did not erase the prescriptive easement that she found to have existed prior to the agreement made in 1980.  She reasoned that where parties neglect to record an easement on title, that does not defeat the claim for the easement where the Court finds that it exists.  Likewise, the failure by the parties to have recognized the pre-existing easement in the 1980 agreement did not extinguish the pre-existing prescriptive easement.  Justice Gomery ruled in favour of Neighbour E.

Read the decision at: E et al. v. P et al.