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.

Is entering your property only once in 10 years enough to prevent a successful claim for adverse possession?

Justice E.M. Morgan's decision begins with this question: "Can a claimant have possessory title if the registered owner entered the property only once during the claimant's ten years of otherwise undisturbed adverse possession?".  Under Ontario law, the interest of the registered owner of land may be extinguished by a person who has been in adverse possession of the land for ten years.  The registered owner is then open to losing title to the property to the adverse possession claimant.

In this case, the land in dispute was a small triangle at the top end of a driveway between two properties.  The adverse possession claimant had a right of way over the driveway, but not over the small triangle.  The triangular area was used to facilitate the claimant's turning his car into his garage at the rear of his property.  The registered property owners asked the Court to make a declaration confirming their ownership of the triangle.  They also sought orders requiring their neighbour to remove fencing, interlocking brick and a gate that he had installed on the driveway (which they owned).  The claimant responded by asking the Court to declare him the owner of triangle by adverse possession.

Justice Morgan reviewed the evidence of adverse possession, which must constitute "strict proof".  In the past, a chain link fence had been erected to separate the triangle from the rest of the registered owners' property.  It was established that the fence was installed no later than March 31, 1988.  Owing to the conversion of the property to the Land Titles system in 2001, the claim for adverse possession would depend on establishing exclusive possession by the claimant (or his predecessors in title) of the triangle for an interrupted period of ten years between 1988 and 2001. 

What does it take to interrupt the exclusive possession?  In this case, a previous owner of the triangle deposed that on at least one occassion, in 1996, he entered the triangle to cut down some "swamp maple trees" located there.  That meant that the 10-year clock stopped and restarted in 1996, which did not leave enough time before 2001 to establish continuous adverse possession.  Therefore, Justice Morgan ruled that the registered owners retained their title to the triangular area on their property.

As for the encroaching fence, gate and interlocking brick, Justice Morgan again ruled in favour of the registered owners of the property: "The Applicants are showing their frustration, and are being somewhat difficult by insisting that the interlock be removed from their portion of the driveway.  Nevertheless, they are within their rights to so insist.  The Respondent is not permitted to alter the Applicant's property without consent even if the alteration is, objectively speaking, an improvement."

Read the decision at: Maras v. Milianis.