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Real Property Law - Interests in land - Easements - Creation - By implication - By implied grant - Right exercised by owner for benefit of property

Thursday, September 08, 2016 @ 8:00 PM  


Appeal by the petitioners from the dismissal of their petition for a declaration of an implied easement or an easement of apparent accommodation. At times, the appellants had used part of a shared driveway located on their neighbours’ property for vehicular access to their property. The driveway was built sometime prior to 1976. Between 1976 and 1981, a hedge between the two properties blocked vehicular access to the appellants’ property. The hedge was removed in 1981 and the appellants’ grandparents were granted vehicular access on a temporary basis. The appellants re-paved the driveway at their expense but were denied a registered easement over the driveway. When the respondents purchased the property in 2009, they were advised that the appellants’ use of the driveway was temporary only. After the respondents purchased the neighbouring property, they erected a fence that cut off the appellants’ use of the driveway. As a result, the only access to the appellant’s property was by way of 23 stairs from the roadway below. The trial judge dismissed the appellants’ petition for a declaration of an easement, finding that there was insufficient evidence to establish that: 1) the original grantor at the time of the original grant in 1934 intended to provide the grantee vehicular access via a shared driveway; and 2) subsequent purchasers of the grantor’s property after 1934 intended to grant the occupants of the appellants’ property an implied easement for the use of the respondents’ driveway; and 3) the shared use of the respondents’ driveway was necessary for the reasonable enjoyment of the property. The appellants appealed, arguing that the judge erred in finding they had failed to demonstrate an implied easement over the respondents’ driveway.

HELD: Appeal dismissed. The judge incorrectly formulated the legal test by including consideration of the intention of subsequent purchasers of the respondents’ property and whether there were alternate options for vehicular access to the appellants’ property. However, he correctly found that the evidence failed to meet the requirements for an implied easement. Moreover, even if an easement had been established at the time of the original derogation of grant, it would have been pre-empted by the operation of the Land Title Act and would not have survived the subsequent sale to a bona fide purchaser for value of the servient tenement.