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Doctrine of Lost Modern Grant

. Balogh v. R.C. Yantha Electric Ltd.

In Balogh v. R.C. Yantha Electric Ltd. (Ont CA, 2021) the Court of Appeal considered the doctrine of the lost modern grant:
[6] Under the doctrine of lost modern grant, an easement by prescription can be established by the owners of the dominant tenement over the affected portion of the servient tenement based on 20 years of continuous, uninterrupted, open and peaceful use of the land without objection by the owner of the servient tenement. The use must be “as of right” meaning that the owner of the servient tenement must have knowingly acquiesced to the establishment of the easement, not just granted permission or a license to use the land: see Carpenter v. Doull-MacDonald, 2017 ONSC 7560, 92 R.P.R. (5th) 6, at paras. 42-47, aff’d 2018 ONCA 521, 92 R.P.R. (5th) 47.
. English v Perras

In English v Perras (Ont CA, 2018) the Court of Appeal comments as follows on the doctrine of lost modern grant:
(1) Introduction

[27] The Perrases challenge the application judge’s conclusion that an easement had been acquired through the doctrine of lost modern grant. The essential features of an easement are set out in Barbour v. Bailey, 2016 ONCA 98 (CanLII), 345 O.A.C. 311, in which Roberts J.A. wrote, at para. 56:
To make out an easement, a claimant must satisfy the following four essential characteristics of an easement or right-of-way:
i. There must be a dominant and servient tenement;

ii. The dominant and servient owners must be different persons;

iii. The easement must be capable of forming the subject matter of a grant; and

iv. The easement must accommodate – that is, be reasonably necessary to the better enjoyment of – the dominant tenement.
See also Depew v. Wilkes (2002), 2002 CanLII 41823 (ON CA), 60 O.R. (3d) 499 (C.A.), at paras. 18-23; Kaminskas v. Storm, 2009 ONCA 318 (CanLII), 95 O.R. (3d) 387, at paras. 26-28; Bruce H. Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014), at pp. 381-85; Anne Warner La Forest, Anger & Honsberger Law of Real Property, loose-leaf (2017, Rel. 19), 3rd ed. (Toronto: Thomson Reuters), vol. 2, at p. 17-3.
[28] The doctrine of lost modern grant is recognized as a method for acquiring a prescriptive easement. It involves requirements in addition to the constituent elements of an easement. In 1043 Bloor Inc. v. 1714104 Ontario Inc., 2013 ONCA 91 (CanLII), 114 O.R. (3d) 241, Laskin J.A. described the doctrine in the following way, at para. 91:
[T]he acquisition of a prescriptive easement by lost modern grant rests on a judicial fiction. The law pretends that an easement was granted at some point in time in the past but that the grant of the easement has gone missing. A prescriptive right emerges from long, uninterrupted, unchallenged use for a specified period of time – in Ontario, 20 years…
See also Charles Harpum, Stuart Bridge & Martin Dixon, Megarry & Wade: The Law of Real Property, 8th ed. (London: Sweet & Maxwell, 2012), at pp. 1309-11; Ziff, at pp. 392-93.


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