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INTEREST IN LAND - Easements - Creation - By invitation

Friday, April 03, 2020 @ 9:24 AM  


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Appeal by the respondents’ neighbours from the application judge’s declaration that the respondents enjoyed property rights over a two-foot wide strip that ran between the two properties. The application judge found the respondents enjoyed a prescriptive easement over the portion of the two-foot wide strip that abutted the respondents’ driveway and ownership by way of adverse possession over the portion of the disputed strip that ran into the respondents’ backyard and was enclosed by a gate. The application judge found that the respondents’ predecessors in title had acquired a prescriptive easement over the portion of the disputed strip that abutted their driveway through over 20 years of open and continuous use without the permission of the former owners of the appellants’ property. With respect to the backyard portion of the strip, the application judge determined that the respondents’ predecessors in title had erected a gate which effectively excluded the former owners of appellants’ property from entering the backyard without permission. The appellants argued the application judge made palpable and overriding errors in his consideration of the evidence and in his application of the law governing prescriptive easements and adverse possession.

HELD: Appeal allowed. In considering whether the alleged easement accommodated the dominant tenement, the application judge failed to determine whether the easement over the disputed driveway area was reasonably necessary to the better enjoyment of the respondents’ property, the dominant tenement. The judge’s finding that the disputed strip in the backyard area was not reasonably necessary for the better enjoyment of the respondents’ property was not a finding that the disputed strip in the driveway area was reasonably necessary for its better enjoyment. The predecessors in title’s evidence of historic use of the disputed driveway area consisting primarily of parking on the driveway close to the side door of the property to unload cars did not establish that it was continuous or permanent. The driveway was wide enough that the predecessors in title could park their cars on their own driveway without occupying the disputed driveway area. Since the alleged easement over the disputed driveway area was not reasonably necessary for the better enjoyment of the respondents’ property, the application judge erred in finding that the respondents had demonstrated that a prescriptive easement arose. The application judge also erred in concluding that the appellants’ predecessors in title were effectively excluded from the backyard portion of the disputed strip for the statutory period. He materially misapprehended the evidence of the appellants’ predecessor in title in finding that he never entered the respondents’ backyard except with permission of whoever resided there at the time. The evidence did not establish that the appellants’ predecessor in title was effectively excluded from his own property by the gate.

Terzian v. Vivekanandan, [2020] O.J. No. 636, Ontario Court of Appeal, A. Hoy A.C.J.O., K.M. van Rensburg and L.B. Roberts JJ.A., February 12, 2020. Digest No. TLD-March302020011