“…but I’ve always parked there!” –

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Fairness and the Importance of Documenting Your Property Rights

We are all familiar with the term “squatter’s rights” – the idea that if someone occupies a piece of land for long enough they can claim rightful ownership of it (in law this is referred to as “adverse possession”).  The majority of properties in Ontario are governed by the “Land Titles” system, which does not allow claims based on adverse possession.  For the most part in Ontario, you cannot simply occupy a piece of land for a prolonged period of time and then claim that you own it.  

But what about a situation where neighbors have crossed over each others’ land for years?  If one neighbor has crossed over the other neighbor’s land for a prolonged period of time, can that neighbor claim that they have a permanent legal right to continue crossing over that land?  The short answer is no; you cannot simply cross over a piece of land for a long enough period and then claim that you have a permanent legal right to continue doing so.  

The legal right to cross over, or enter on to someone else’s property (often for a specific purpose), is referred to as an “easement”.  An easement is usually intended to be permanent (if you sell your property, the right to use the easement will be transferred to the buyer, if your neighbor sells their property, the new owner must continue allowing you to use it).  A typical example of an easement is one given to a utility company; Hydro Ottawa may have an easement over the rear 10 feet of your property, allowing them to enter on to that space to repair or maintain their hydro lines.  

Easements are often formalized in writing and registered with the Land Registry Office.  An important feature of formal, registered easements is that the owner whose property is subject to the easement cannot interfere with the rights of those who are authorized to enter on to or use that easement.  As you can imagine, it is usually not the registered easements that cause trouble, but rather the oral agreements, or the “understandings” that neighbors reach at a given point in time that can be problematic.  

Consider this example: you and your neighbor share a driveway between your houses (the driveway straddles the property line) and you both use the driveway to access your respective garages that are in your backyards.  Suppose your neighbor decides she wants to renovate, put a garage in the front of her house and free up her backyard to put in a pool.  The problem is that her new garage, while on her side of the property line, is going to make the shared driveway too narrow to fit your car through, preventing you from driving in to your garage.  Is there anything you can do?

It is usually best to try and negotiate these matters first, but if negotiating fails, you can turn to the Court and ask the Court to grant you an easement.  Two of the arguments you can advance are for an “easement of necessity” or for an easement based on “proprietary estoppel”.

To start with, you could argue that the easement is necessary in order for you to use your property (referred to as an easement of necessity).  The problem with that argument is that the Courts will not typically consider an easement to be necessary unless not having that easement would leave your property landlocked and inaccessible.  The Court would probably recognize the inconvenience of not having the easement, but convenience and necessity are two different things, particularly in law.

What about the fact that it seems unfair that a neighbor can suddenly disrupt the access you have enjoyed for so long?  This takes us into the realm of equity, where the courts look beyond the strict letter of the law and try to do what is fair in the circumstances.  In this case, we turn to the concept of proprietary estoppel.  Estoppel is when a person (or other entity) is prevented by a Court Order from doing something because it would be unfair of them to do it.  It sounds simple enough, but establishing that someone’s actions would be unfair is no easy task.

To establish proprietary estoppel you would have to convince the Court that you should be granted an easement over your neighbor’s property because it would be unfair otherwise.  To successfully advance your argument, you would have to show three things: (1) that your neighbor allowed you to believe that you had a right to use her property, (2) that you relied on that information to your detriment, and (3) that it would be unconscionable for your neighbor to assert her right to build over your access route.

The first criterion seems easy enough; you and your neighbor used the common driveway for years with the understanding that you had each other’s permission to drive over the other’s property.

The second criterion is a little more difficult.  You have to prove that you spent money or gave something up because your neighbor led you to believe that you had an easement over her property.  For example, if you built your garage in your backyard relying on the fact that you would always have access to it, the Court may decide that you did, in fact, rely on your neighbor’s permission to your detriment.

The last criterion is the most difficult one.  To satisfy this criterion you have to show that your neighbor knew that you were relying on her permission to use the shared driveway and that she either encouraged you to spend money (or give up something of value), or she remained silent while you did so, all the while knowing she had the right to stop you but chose to do nothing.  Her actions would have to be comparable to fraud before the Court would consider them “unconscionable”, which can be very difficult to prove.

The above example is a fairly simple one; in reality, establishing a right to an easement over someone else’s property is a difficult task, and the chance of success is entirely dependent and specific to the circumstances.  The moral of the story is: if you are using a portion of your neighbor’s property (or they are using a portion of your property), you should contact your lawyer and ask them to look into whether there is a registered easement in place.  If there is, make sure you and your neighbor understand each other’s rights and obligations.  If there is not, then it might be best to formalize your understanding in writing now, while relations are good!

Your real estate lawyer can help determine the rights you have and what you might need to obtain in order to protect your use of and access to your property and ensure that you can continue to enjoy it for years to come.

David Reid is an Associate with the law firm of BrazeauSeller.LLP. He practices in the areas of corporate & commercial law and real estate. David can be reached at 613-237-4000 ext. 252 or dreid@brazeauseller.com. For more information about David, please visit www.brazeauseller.com.

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