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INTERESTS IN LAND - Disturbance of an easement - Remedies

Friday, March 05, 2021 @ 6:17 AM  


Lexis Advance® Quicklaw®
Appeal by the homeowners from a decision of an application judge ordering them to remove pool amenities. Part of the appellants’ backyard was subject to a 1972 easement held by the respondents. The easement prohibited the erection of any building or structure within that strip of land. The appellants knew about the easement when they bought the property and proceeded to build pool amenities without a municipal building permit on the strip subject to the easement. They believed the easement was abandoned or never used. Located within the easement was an underground conduit that housed a hydro cable providing electricity to a neighbouring property. The application judge declared the pool amenities to be a building or structure erected on the land that was subject to the easement, and thus an actionable encroachment upon it.

HELD: Appeal dismissed. The application judge did not err in ruling that the pool amenities were an actionable encroachment. The easement indenture specifically excluded the planting of any tree and the erection of any building or structure. The application judge was also entitled to conclude that interpreting the easement as an outright prohibition reflected its broad purpose of allowing the Town unfettered access within the easement to provide municipal services. There was no basis for concluding that the easement was abandoned or partially extinguished. There was no evidence that the municipal purposes for creating the easement had come to an end. Although the Town expressly permitted the construction of a portion of the appellants’ house and carport within the easement, the equitable doctrine of proprietary estoppel did not preclude the enforcement of the respondents’ easement.

Oakville (Town) v. Sullivan, [2021] O.J. No. 49, Ontario Court of Appeal, G.T. Trotter, B. Zarnett and M. Jamal JJ.A., January 6, 2021. Digest No. TLD-March12021010