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Real Estate - Easement by Prescription

Hunsinger v. Carter (Ont CA, 2018)

Here the Court of Appeal sets out doctrine applicable to easement by prescription:
(1) Establishment of an easement by prescription

[9] An easement by prescription can arise either under s. 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15, or pursuant to the doctrine of lost modern grant. Both have the same four requirements, which were properly recognized by the application judge: i) a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land; ii) the properties cannot be owned by the same person; iii) the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and iv) there must be 20 or 40 years’ (see: Kaminskas v. Storm, 2009 ONCA 318 (CanLII), 95 O.R. (3d) 387, at paras. 31-36) continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner. See: Henderson et al. v. Volk et al. (1982), 1982 CanLII 1744 (ON CA), 35 O.R. (2d) 379 (C.A.).

[10] After a property has been registered under the Land Titles system, a pre-existing prescriptive easement over the land can be established if the four criteria can be proved to have been met before the land was transferred into Land Titles: Carpenter v. Doull-MacDonald, 2017 ONSC 7560 (CanLII), at paras. 54-55.

(2) Ability to encroach

[11] Where an easement has been found to exist, an adjoining owner will be entitled to encroach on it unless that encroachment amounts to substantial interference with the use of the easement. In Gale on Easements, 19th ed. (London: Sweet & Maxwell, 2012), at para. 13-06, the authors quote the test from Cockburn C.J. in Hutton v. Hamboro (1860), 175 E.R. 1031 (U.K. Assizes):
[W]here the obstruction of a private way was alleged … the question was whether practically and substantially the right of way could be exercised as conveniently as before.
[12] In Weidelich, Doherty J.A. discussed how that test should be applied in the context of a right of way granted in a deed. He concluded at para. 15 that “[t]he dominant owner is entitled to every reasonable use of the right-of-way for its granted purpose.” He adopted as correct the articulation of the test in the case of B & Q Plc v. Liverpool and Lancashire Properties Ltd., [2000] E.W.H.C. 463 (U.K. Ch.), as follows:
In short, the test … is one of convenience and not necessity or reasonable necessity. Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?

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