Ontario Civil

Real Property

Neighbours did not have unrestricted easement

Application by property owner for declaration that registered easement covered limited uses, for order requiring neighbours to restore her property, and for permanent injunction restraining neighbours from interfering with her use of her property. Owner and neighbours had purchased building lots served by common laneway. In order to access laneway, neighbours had been granted right of way over part of owner’s property. Neighbours constructed home without making provision to park motor vehicles on their property. Neighbours regularly parked on owner’s property. Neighbours excavated part of owner’s property to establish driveway from common laneway to their home. Neighbours also installed retaining wall on owner’s property. Application granted. Easement was valid contractual easement. Relevant part of easement was “for the purpose of vehicle traffic over the common lane in order to access their lots”. Neighbours did not have unrestricted easement. Easement had to be construed having regard to circumstances existing at time easement was granted. Neighbour should have known from circumstances existing at time that they could not do what they intended to do. Neighbours could have constructed home in such way as to fit most of their driveway on their property but they had not given it any thought. Allowing neighbours to keep driveway on owner’s property would have amounted to expropriation without compensation. Adili v. Donn (July 17, 2012, Ont. S.C.J., Cavarzan J., File No. CV-10-24003) 218 A.C.W.S. (3d) 456 (31 pp.).

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