ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C-1105/11
DATE: 20141124

BETWEEN:

DARYLL SKRABA and ROLLAND LEBRASSEUR
Plaintiffs

– and –

RITA CRISAFI and RODGERS MWIMBA and BANK OF MONTREAL
Defendants

Gerard E. McAndrew, for the Plaintiffs.

D. Peter Best, for the Defendants, Rita Crisafi and Rodgers Mwimba.
Bank of Montreal, not represented.

HEARD: September 15, 16, 17, 18, 2014.

r. d. gordon, r.s. j.

Overview:

[1] The parties are neighbours in a residential neighbourhood in Sudbury, Ontario. Between the houses on their respective properties there is a driveway which has traditionally been used by the Plaintiffs and their predecessors in title. The Defendants have recently asserted ownership of a portion of that driveway and the Plaintiffs have responded by asserting a right to adverse possession, or in the alternative, to an easement based upon the doctrine of lost modern grant. Also at issue between the parties is ownership of an 11.5 x 4.1 foot strip of land immediately south of the driveway, and a further 65 x 1.4 foot strip of land running south from there.

Background

[2] The Plaintiffs are the owners of 403 Morris Street (“403”) in the City of Sudbury. They acquired the property on May 30, 1984. The property is made up of the westerly 40 feet of Lot 35.

[3] Immediately to the east of 403 is 407 Morris Street (“407”), which is owned by the Defendants. The defendants acquired title to 407 in December of 2009 and it is made up of the remainder of Lot 35 and part of Lot 36. They acquired this property from the Estate of Gerald Burton. Mr. Burton had owned the property since November 2, 1981. It is not entirely clear when, if ever, Mr. Burton occupied 407 as his residence. Much of the time it was occupied by tenants. Some of the time it was vacant. Mr. Burton visited the property regularly over the years.

[4] Between the houses on the properties is a gravel driveway which extends from the foundation of one to the foundation of the other, a width of about 12.5 feet. The driveway is 28 feet deep. The eaves and eaves trough of 407 extend westerly over the driveway by 1.4 feet.

[5] The surveyed property line between the two properties runs in a north/south direction 4.1 feet west of 407.

[6] Both properties were originally registered under the Registry Act. On May 25, 2004 both were converted to and registered under the Land Titles Act where title was noted as “Land Titles Conversion Qualified”.

[7] When the Plaintiffs purchased 403, 407 was occupied by a fellow named Bernard and his family. In the summer of 1984, Bernard erected a chain link fence to help keep his children in his backyard. The fence began at the southwest corner of the house, extended westerly for 2.9 feet and then turned south and ran for a distance of 65 feet. The fence is between 1.2 and 1.6 feet to the east of the surveyed property line.

[8] In 1990, the Plaintiffs built a wooden fence along the entire southern boundary of the driveway. The fence had a gate that opened into their back yard.

[9] The Defendants live across the street from 407 at 408 Morris Street, which they purchased in 2006. In 2009, 407 was put up for sale and on December 11, 2009 they became the owners of it also. Initially they intended to tear the house down and build a new home for themselves, however the costs of doing so turned out to be more than they could handle and so they decided to renovate the home and maintain it as a rental property.

[10] The relationship between the Plaintiffs and Defendants was cordial until the summer of 2010 when the Plaintiffs formed the impression that the Defendants were going to begin use of the driveway to access the backyard of their property and that they may have to rethink their use of the driveway. The Plaintiffs consulted counsel and had a trespass notice served on the Defendants. The Defendants responded by commissioning a survey and building a fence along the surveyed property line. This court action ensued.

[11] At issue between the parties are three distinct sections of land: First, the driveway area which measures 4.1 feet by 28 feet; second, the 4.1 by 11.5 foot strip of land immediately behind the driveway and adjacent to the house at 407 (the “storage area”); and third, the strip of land west of the chain link fence, measuring about 1.4 feet by 65 feet (the “backyard area”).

The Driveway

[12] Since the Plaintiffs acquired 403 they have used the driveway between the houses as their own. In addition to parking their car(s) there they have:

(1) From time to time parked a utility trailer and a boat trailer there.

(2) From time to time piled construction materials there.

(3) Built a wooden fence along the full width of the southerly boundary of it.

(4) On two occasions, maintained the driveway by spreading gravel on it.

(5) Regularly maintained the driveway by pulling weeds and clearing garbage from it.

(6) Did minor landscaping at the southeast corner of the driveway.

(7) In the winter time removed snow from the driveway.

[13] Although there was a good deal of evidence called to address the intermittent use of the driveway by Mr. Burton and his tenants at 407, it was the uncontroverted evidence of one of the tenants, Sherry Fryer, that while she was a tenant of 407 between 1989 and 2000 the driveway was used exclusively by the Plaintiffs. That is, it was her evidence that neither she nor Mr. Burton made any use of the driveway during that period of time and that the Plaintiffs used the driveway as described by them during that entire period of time. The Plaintiffs’ evidence confirmed this. There was no evidence to the contrary.

The Storage Area

[14] It was the evidence of the Plaintiffs that following construction of the chain link fence by Bernard in 1984 they began to use the storage area to store items from time to time. Little more was said with respect to this area of land.

The Backyard Area

[15] It was the evidence of the Plaintiffs that following Bernard’s construction of the chain link fence they planted vines and trees along the west side of the fence line. Some trees were subsequently replaced by them in 2005 or 2006. Little more was said with respect to this area of land.

The Applicable Law

Adverse Possession

[16] A person’s ability to advance a claim for adverse possession against real property owned by another arises from section 4 of the Real Property Limitations Act R.S.O. 1990, Chapter L.15. That section provides that an owner’s right to bring an action to recover land expires 10 years after the date when the right to take such action first arose. The section effectively provides a defence to someone who has been in possession of another’s real property for a period in excess of 10 years and, if the defence is proved, entitles such person to ownership of the property by way of adverse possession.

[17] However, claims to land asserted through adverse possession are significantly restricted when the lands in question are registered under the Land Titles Act. Section 51 of the Land Titles Act R.S.O. 1990, c. L.5 effectively prohibits the creation of any new possessory title through adverse possession once land has been placed under the Land Titles system, but preserves any rights to adverse possession acquired before its conversion.

[18] The three requirements for establishing title by adverse possession were confirmed by the Ontario Court of Appeal in Shennan v. Szewczyk, 2010 ONCA 679 and are as follows:

(1) Actual possession through the statutory period (here, 10 years by virtue of section 4 of the Real Property Limitations Act, R.S.O., c. L. 15);

(2) The intention to exclude the registered owner from possession; and

(3) Effective exclusion of the true owner throughout the statutory period [see Bellini Custom Cabinetry Ltd. v. Delight Textiles Ltd., 2007 ONCA 413, at paragraph 32].

[19] The element of actual possession requires acts of possession which must be open, notorious, peaceful, adverse, exclusive and continuous. If any of these elements is missing at any time during the statutory period, the claim for possessory title will fail. Possession must be open and notorious for two reasons: First, such possession shows the claimant is using the property as an owner might, and second, it puts the registered owner on notice that the statutory period has begun to run. The element of adversity means that the claimant is in possession without the permission of the owner. If the claimant acknowledges the right of the true owner then the possession is not adverse [see Teis v. Ancaster (Town of), 1997 ONCA 1688].

[20] Except in limited circumstances, the element of the claimant’s intent requires him or her to have manifested the intention to exclude the registered owner by making use of the property in a manner which is inconsistent with the use of the registered owner.

[21] The element of effective exclusion of the registered owner basically requires that he or she must not have had possession of the property during the required period.

[22] Counsel for the parties were basically in agreement about the law applicable to adverse possession. However, there was one issue about which they did not agree, namely: Whether any 10 year period during which the claimants and/or their predecessors met the requirements of adverse possession would be sufficient to establish possessory title, or whether that 10 year period must be the 10 years immediately preceding conversion of the property to Land Titles.

[23] The answer is found in Sections 4 and 15 of the Real Property Limitations Act. The essence of section 4 is that no person shall bring an action to recover any land but within ten years next after the time at which the right to bring such action first accrued. Section 15 provides that at the end of those ten years, the right and title of such a person to the land is extinguished. As it pertains to the facts of this case, although there is evidence that after the year 2000 Mr. Burton or his tenant used the property in question from time to time, the evidence is uncontroverted that between 1989 and 2000 they did not. Accordingly, if all of the elements of adverse possession are established for that period of time, the right of Mr. Burton, or his successors in title, to the property in question was extinguished in 2000. Even if there was subsequent use of the property by Mr. Burton or his successors in title, that use cannot resurrect their ownership.

Lost Modern Grant

[24] As found by R.A. Blair J.A. in Kaminskas v. Storm, 2009 ONCA 318, the doctrine of lost modern grant continues to survive in Ontario. He adopted the description of the doctrine set out in Henderson v. Volk (1982), 1982 1744 (ON CA), 35 O.R. (2d) 379 as follows:

The doctrine indicates that where there has been upwards of 20 years uninterrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfil the requirements of prescription, then apart from some aspects such as incapacity that might vitiate its operation but which do not concern us here, the law will adopt the legal fiction that such a grant was made despite the absence of any direct evidence that it was in fact made.

It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which was continuous, uninterrupted, open and peaceful for a period of 20 years. However, in the case of the doctrine of lost modern grant, it does not have to be the 20-year period immediately preceding the bringing of an action.

As well, the enjoyment must not be permissive. That is to say, it cannot be a user of the right-of-way enjoyed from time to time at the will and pleasure of the owner of the property over which the easement is sought to be established.

The requirements of a prescriptive easement are as follows:

1. There must be a dominant and servient tenement;
2. An Easement must accommodate the dominant tenement;
3. The dominant and servient owners must be different persons;
4. A right must be capable of forming the subject matter of a grant;
5. The user of the alleged right must be shown to have been continuous and “as of right”. User “as of right” means that the use has been uninterrupted, open, peaceful and without permission for the relevant period of time.

Analysis

The Plaintiffs’ Claim for Adverse Possession of the Driveway

[25] As I have indicated, the Plaintiffs’ evidence of their exclusive use of the driveway between 1989 and 2000 was confirmed by Sherry Fryers, the tenant at 407 during that period of time. There was no evidence from anyone that the owner of 407 or any person authorized by him actively used the driveway at any time during that 11 year period. Accordingly, the Plaintiffs’ claim for adverse possession of the driveway is at its best during this period of time. If they are not successful based upon their possession during those years, they cannot be successful during any other period.

[26] I am satisfied that the Plaintiffs’ use of the driveway between 1989 and 2000 was open, notorious, peaceful, adverse, exclusive and continuous. The issue which arises is whether their use was with the intention of excluding the owner or tenant of 407, and in making that determination, whether their use need be and was inconsistent with that of the owner or tenant.

[27] As noted above, inconsistent use of the property by a claimant is not necessary in limited circumstances, namely: 1. When both the claimant and the registered owner are mistaken about the location of the boundary between them [see Teis, supra]; and 2. Where the claimant is unilaterally mistaken as to the boundary of the property and the registered owner has little to do with the property and does nothing to assert its ownership right or otherwise disabuse the claimant from his reasonably held belief of ownership [see Bradford Investments (1963) Ltd. v. Fama 2005 27322 (ON SC), [2005] O.J. No. 3258]. This latter scenario is consistent with the state of affairs between the owners of 403 and 407 between 1989 and 2000. Accordingly, if I am satisfied that the Plaintiffs mistakenly believed they were the owners of the driveway, there is no need for them to establish inconsistent use.

[28] The Plaintiffs’ position of honest but mistaken belief is based upon their observations of the property prior to buying it and a discussion they had with the owner from whom they purchased. Their evidence is that they had driven by the home on several occasions both before and after they had entered into an agreement to buy it. On each occasion, Mrs. Lloyd’s (the vendor) vehicle was parked in the driveway. They testified that after their offer had been accepted they met with Mrs. Lloyd to discuss the property and that parking was specifically discussed. She said that the driveway was part of the property, that she used it exclusively and that she did not anticipate it would be an issue. Counsel agreed that the statement attributed to her would not be admissible for its truth, but for the fact that it was made.

[29] The Plaintiffs say that based upon their observations and their discussion with her, they believed they acquired the entire driveway when they purchased the home.

[30] Counsel for the Defendants argued that their belief must be both honestly held and reasonable. He argued that if the Plaintiffs believed the driveway to be theirs, they were wilfully blind to the true state of affairs and should not be given the benefit of that wilful blindness. The argument is premised primarily on the notion that it was not reasonable for the Plaintiffs to believe that the foundation of the house on 407 was located on the lot line between the two properties, which would be the case if the entire driveway was allocated to 403.

[31] Although the Defendants referred to several pieces of evidence in support of their position, I am persuaded that they are correct by virtue of the following factors:

• When the Plaintiffs acquired 403, Mrs. Lloyd provided a statutory declaration which included a surveyor’s certificate dated September 14, 1973. The certificate states that there are no encroachments onto 403. If the lot line of the property was the foundation of the home at 407, it is apparent that the eaves of the house at 407 would necessarily encroach onto 403. The clear inference is that the lot line was not the foundation of the house at 407.

• It had to have been apparent to the Plaintiffs that they were buying a forty foot lot, which should have suggested to them that their property was narrow and would not necessarily include the entire driveway.

• At discovery Mr. Lebrasseur was asked whether, when he purchased 403, he understood that there was a strip of land on the driveway between the houses that was not his and he answered: “The answer is yes. Because it [meaning the boundary] was clearly somewhere in between the two houses.” This clearly contradicted his evidence at trial and when the contradiction was pointed out to him he was evasive and put forth a questionable explanation that he was not as clear as he might have been on discovery.

• There was a meeting between Mr. Skraba and the Defendants in the driveway when Mr. Skraba spoke of there being a monument marking the boundary of the property and indicated its approximate location, which did not line up with the foundation of 407. He explained that this monument had been shown to him by Bernard, the tenant of 407 not long after they purchased 403, but that it only delineated the boundary of the back yard of the property, not the driveway. His belief that the survey monument located at the northwest boundary of the property would be the marker only for a boundary beginning 28 feet to the south is unreasonable.

[32] These factors persuade me that the Plaintiffs were aware that the Defendants owned part of the driveway, or if they were not they ought to have been and were wilfully blind to the fact. That the precise location of the boundary may have been unknown is of limited consequence. They knew or ought reasonably to have known that the boundary was not the foundation of the house of 407 and that they did not own the entire driveway. It is disingenuous for them to now allege mistaken ownership.

[33] The consequence of this finding is that the Plaintiffs must establish that their use of the driveway was inconsistent with the use of the owner and tenants of 407. The property in question is a small sideyard adjacent to the house at 407. In the normal course it would have little use other than to accommodate the eaves of the home and allow room for any required repair work to the side of the home. The use to which the property was put by the Plaintiffs was not inconsistent with this. The eaves for the house on 407 continued to be accommodated notwithstanding the Plaintiffs’ use of the property. The ability of the owner of 407 to access the sideyard to effect repairs to the house was never lessened. Although I accept that the Plaintiffs used the property in question and that their use was exclusive over the required ten year period, it was not inconsistent with the use of the owner or his tenants. The result is that the claim for title to the entire driveway based upon adverse possession must fail.

The Plaintiff’s Claim for Adverse Possession of the Storage Area

[34] There was no suggestion there was any mistake about ownership of the storage area.

[35] Accordingly, the Plaintiffs must establish inconsistent use of the storage area property. For the same reasons as given above they have not done so and their claim for adverse possession must fail.

The Plaintiffs’ Claim for Adverse Possession of the Backyard Area

[36] In 1984, Mr. Skraba met with the owner of 407 (Mr. Barton) and the tenant residing at the house (Bernard) to discuss the location of a fence Bernard wished to have erected between the back yards of the property. The boundary of the property was agreed among them. Bernard then built the fence. It turns out that the fence was erected to the east of the surveyed boundary between the properties. From when that fence was erected in 1984, the owners of both 407 and 403 regarded that fence as the boundary between the rear yards of the properties. Certainly this was the case from when it was built to when the properties converted to Land Titles in 2004. During that period of time, the Plaintiffs planted trees and vines on the property. Their use of it met all three requirements of a claim for adverse possession outlined above. Because of the mutual mistake no inconsistent use is required. The Plaintiffs’ intention to exclude the registered owner of the property may be readily inferred from their use of the property based upon the mutually mistaken belief in ownership.

[37] It follows that the Plaintiffs have successfully maintained their claim of adverse possession with respect to that strip of land I have referred to as the backyard area.

The Plaintiffs’ Claim of Lost Modern Grant With Respect to the Driveway

[38] As noted above, the Plaintiffs’ claim for an easement based on the doctrine of lost modern grant requires 20 years of uninterrupted use of the property. Given the conversion of the lands to the Land Titles system on May 25, 2004, the twenty year period would have to have been satisfied in full by then. The uses alleged by the Plaintiff include primarily parking and intermittent storage of trailer and construction materials. All requirements of a prescriptive easement must have existed for the entire 20 year period. In that regard, I find as follows.

[39] It is clear that there is and always was a dominant tenement (403) and a servient tenement (407).

[40] It is equally clear that the uses in question accommodated the dominant tenement.

[41] The dominant tenement and the servient tenement have always been different persons.

[42] To form the subject-matter of a grant, there are three conditions that must be satisfied. The first is that the right granted must be sufficiently definite. In my view, the right to use the property for parking and storage is sufficiently definite. Second, it must be consistent with the proprietorship of the servient owner. Parking and storage is not inconsistent with the servient owner’s use of the property as a vacant sideyard with eaves overhang. Third, it cannot be a mere right of recreation without utility or benefit. Parking and storage are of utility or benefit to the dominant tenant. Accordingly, I am satisfied that the uses in question are capable of forming the subject matter of a grant.

[43] The use of the alleged right must have been continuous and “as of right”. On the evidence, I am satisfied of this. There was no evidence before me to suggest that these uses were interrupted at any time. The uses were clearly open, peaceful and without the permission of the servient owner.

[44] The only significant issue with respect to the Plaintiffs’ claim of lost modern grant is whether it existed for the entire twenty year period. The issue arises because the Plaintiffs owned the property for five days shy of twenty years. I accept their evidence that prior to the completion of their purchase they were by the house on several occasions and observed the vehicle owned by the vendor of 403 (Mrs. Lloyd) parked in the driveway. However, there was no evidence of the use of the driveway by her for any other purpose such as storage. Accordingly, I am satisfied that the land was used for the purpose of parking by the owners of 403 for the requisite twenty year period. I am not satisfied that it was used for any other particular purpose during the required twenty year period.

[45] I conclude that the Plaintiffs have been successful in establishing a prescriptive easement over the driveway property based on the doctrine of lost modern grant. The easement shall be in favour of the owners of 403 from time to time, along with their guests and shall allow them to park a motor vehicle on the property and to maintain, repair and replace the surface of the property for that purpose, including the right to clear the property of snow. The owners of 407 shall have the right to reasonably and temporarily restrict the use and enjoyment of the property by the owners of 403 to repair, maintain or renovate the house at 407 provided reasonable prior written notice is given.

The Plaintiffs’ Claim of Lost Modern Grant With Respect to the Storage Area

[46] There is no evidence that the storage area was used by the owner of 403 prior to the Plaintiffs becoming owners. It follows that the required twenty year period of use cannot be established and the Plaintiffs’ claim cannot succeed.

The Limitations Defence

[47] Citing an article by Gavin T. Tighe entitled “Squatters’ Rights in the Land Titles System”, counsel for the Defendants suggested that section 32 of the Real Property Limitations Act can be interpreted in a way which defeats claims for adverse possession and prescriptive easements which are not pursued by the claimant within one year of conversion of the property to Land Titles.

[48] Without commenting specifically on the interpretation of section 32 offered, I note two things which would render it inapplicable in the proceedings before me. First, the Plaintiffs do not claim a statutory easement. Rather, they claim an easement based upon the doctrine of lost modern grant. A crucial difference between the two is that for the right to accrue under the doctrine of lost modern grant, the requisite user need not be for the period “next before” the action, but may exist during any uninterrupted 20-year period or longer [see Kaminskas v. Storm, supra]. Secondly, section 32 is, by its own terms, specific to the time periods set out in section 30 and 31. Neither of those sections provide for adverse possession claims arising from the ten year period referred to in section 4. In the circumstances, although the limitations defence might arguably apply to a claim for a statutory easement, I am not satisfied that it would apply to either of the claims being made in this case.

Conclusion

[49] The Plaintiffs’ claims related to the area referred to herein as the storage area is dismissed.

[50] The Plaintiffs’ claim for possessory title of the area referred to herein as the backyard area is granted. As such possessory title is found to have existed prior to the registration of the Defendants’ mortgage in favour of the Bank of Montreal, the Plaintiffs’ interest in this land shall be free and clear of such mortgage. The Defendants are required to relocate the wooden fence they have erected to reflect the property boundary resulting from the Plaintiffs’ possessory title.

[51] The Plaintiffs’ claim for possessory title of the area referred to herein as the driveway area is dismissed, but their claim for an easement based upon the doctrine of lost modern grant is granted on the terms hereinbefore set out. As this easement is found to have existed prior to the registration of the Defendants’ mortgage in favour of the Bank of Montreal, the said mortgage shall be deemed to be subsequent in priority to the easement in favour of the Plaintiffs. The Defendants are required to remove the wooden fence they have erected on the driveway.

[52] The Defendants have, by their construction of a fence on land to which the Plaintiffs have possessory title, committed a trespass. There have been no losses proved by the Plaintiffs in relation to the trespass. I assess nominal damages in the amount of $200. The Defendants’ removal of that part of the Plaintiffs’ fence which was situate on the driveway was lawful. Their construction of their own fence on the driveway has the effect of interfering with the Plaintiffs’ easement and is to be removed as noted above.

[53] If the parties are unable to agree on the issue of costs, they may make written submissions to me within 45 days, not to exceed three pages plus attachments each.

Mr. Justice R. D. Gordon, R.S.J.

Released: November 24, 2014

COURT FILE NO.: C-1105/11
DATE: 20141124

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

DARYLL SKRABA and ROLLAND LEBRASSEUR

Plaintiffs

– and –

RITA CRISAFI and RODGERS MWIMBA and BANK OF MONTREAL

Defendants

reasons for judgment

R. D. GORDON, R.S. J.

Released: November 24, 2014