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INTERESTS IN LAND - Extinguishment of easement - Release by dominant owner - By implication

Thursday, October 14, 2021 @ 5:58 AM  


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Appeal by property owners from a decision dismissing their application for a declaration that rights of way registered on title in favour of two neighbouring properties were abandoned. The appellants purchased 121 Massey Street in 2017 and wanted to build a larger home on it. The houses situated on the dominant tenements, 174 and 176 Strachan, were row houses with rear gardens abutting 121 Massey Street, the servient tenement. 174 and 176 Strachan lacked direct access to their rear gardens except through the houses themselves. They each benefitted from a registered right of way that ran up the driveway of 121 Massey Street. The rights of way were established by the 1905 deed for 121 Massey. A previous renovation not later than 1986 extended the rear of the house at 121 Massey to within approximately one foot of the property line with 174 and 176 Strachan. The appellants’ intended construction would completely obstruct both rights of way. The application judge found that the nature of both rights of way was to permit access to the rear of 174 and 176 Strachan for property maintenance like renovations, repairs, and landscaping, rather than to provide day-to-day pedestrian access, and that the totality of the evidence did not establish non-use. She found that the rights of way remained useable and had in fact been used to access the rear of 174 and 176 Strachan as recently as 2015 by a contractor. The application judge also rejected a former tenant’s evidence that the house extension, sheds, trees, and fences had totally obstructed the rights of way and made them impassable and placed little weight on surveys that the appellants argued demonstrated the totality of obstruction.

HELD: Appeal allowed in part. The appeal as it related to the right of way in favour of 174 Strachan was allowed. The extension of the brick house at the servient tenement, 121 Massey Street, in place since at least 1986, totally obstructed the 174 Strachan right of way and made the right of way useless for accessing 174 Strachan. Because the previous owners in title of 174 Strachan did not object to a total obstruction of their right of way, the only available inference was that they intended to abandon it. The right of way in favour of 176 Strachan was only partially obstructed by the house extension and did not prevent its use by 176 Strachan. The application judge made no error in concluding that the appellants did not meet their burden of establishing non-use and of proving that either the current owners of 176 Strachan or their predecessors in title intended to abandon the right of way in total. The fences and sheds did not obstruct the right of way to the same extent as the extension of the house on 121 Strachan. They were not structures of any permanence, nor had they prevented the right of way from being used to access the rear of 176 Strachan for occasional maintenance, renovation, and repair. To the extent that the fences constituted an obstruction, they were easily removable. The application judge did not err in her characterization of the nature and extent of the rights of way. She understood there were two sets of legal relations at issue and that she had to consider all the relevant evidence from whatever source to determine whether the appellants established an intention to abandon the rights of way. She made no error in characterizing the purpose of the rights of way as broader than facilitating access to sheds and including access for periodic maintenance and renovation. As it was not possible for this court to make a finding of the dimensions of the right of way impacted by the 1986 extension of the home on 121 Massey, the matter was returned for a determination of the dimensions of the portion of lands subject to the right of way in favour of 176 Strachan that were occupied by the house extension at 121 Massey, and for an order deleting that portion of the right of way in favour of 176 Strachan from title.

Yekrangian v. Boys, [2021] O.J. No. 4807, Ontario Court of Appeal, J.M. Fairburn A.C.J.O., B. Miller and B. Zarnett JJ.A., September 17, 2021. Digest No. TLD-October112021005