Historic use may have been personally convenient but wasn’t reasonably necessary accommodation

Real Property – Easements – Creation of easements

Parties were next–door neighbours. Appellants lived on property A and respondents lived on Property B. First disputed area, driveway area, ran along driveway of respondents’ property where it was likely to be used for parking and in passing by garage to access house, but was not fenced off or otherwise inaccessible to appellants. Second disputed area, backyard area, was fenced off and inaccessible to appellants. Appellants had clear title to both disputed areas. Appellant brought application for declaration that title was unencumbered by any possessory claim by respondents. Respondents brought application for declaration they were entitled to use both disputed areas. Appellants' application dismissed; respondents’ application granted. Application judge found that respondents' predecessors in title to Property B had acquired prescriptive easement over portion of disputed strip abutting their driveway through over 20 years of open and continuous use without permission of former owners of Property A. Application judge determined that predecessors in title to Property B had erected gate that effectively excluded former owners of Property A from entering backyard without permission. Appellants appealed. Appeal allowed. Respondents' evidence concerning historic use of disputed driveway area consisted primarily of parking on driveway close to side door of Property B, most notably for purposes of unloading small children, groceries and other things from their cars. Predecessors in title's evidence of historic use of disputed driveway area fell short of establishing that it was continuous or permanent. It was tied to specific time–limited activities that were sporadic and use did not always require occupation of disputed driveway area. Photographs of disputed driveway area revealed that driveway was wide enough that predecessors in title could park their cars on their own driveway without occupying disputed driveway area. Historic use relied upon by respondents may have been personally convenient to their predecessors in title, but it did not serve as reasonably necessary accommodation to their property. Application judge erred in finding that respondents had demonstrated that prescriptive easement arose. Declaratory relief requested by appellants granted, stating that their title to Property A alongside driveway of Property B and alongside original detached garage was unencumbered by any possessory or non–possessory claims by respondents.

Vivekanandan v. Terzian (2020), 2020 CarswellOnt 1699, 2020 ONCA 110, Alexandra Hoy A.C.J.O., K. van Rensburg J.A., and L.B. Roberts J.A. (Ont. C.A.); reversed (2018), 2018 CarswellOnt 10764, 2018 ONSC 4052, E.M. Morgan J. (Ont. S.C.J.).

Case Law is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please visit store.thomsonreuters.ca

Free newsletter

Our newsletter is FREE and keeps you up to date on all the developments in the Ontario legal community. Please enter your email address below to subscribe.

Recent articles & video

List of legal organizations’ COVID-19 resources and changes

Lawyers deemed essential — but LSO urges remote work ‘wherever feasible’

LSO names recipients of 2020 awards: Mary Birdsell, Arleen Huggins, Heather Joy Ross and others…

Celebrating legal excellence – Canadian Law Awards teaser

In light of COVID-19, Ontario firms issue responses and share resources

Limitation periods suspended; law society guides on identity verification

Most Read Articles

In light of COVID-19, Ontario firms issue responses and share resources

Limitation periods suspended; law society guides on identity verification

LSO names recipients of 2020 awards: Mary Birdsell, Arleen Huggins, Heather Joy Ross and others…

Lawyers deemed essential — but LSO urges remote work ‘wherever feasible’