Court File and Parties
COURT FILE NO.: 10700/15 DATE: 2016/07/22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Wolfgang Schnieber J. Ross Macfarlane, for the Applicant Applicant
- and -
Bruce Reginald Kenneth Saalmans and Carole Saalmans Timothy R. Pedwell, for the Respondents Respondents
APPLICATION HEARD at Welland, Ontario: April 22, 2016 The Honourable Justice T. Maddalena
DECISION
Background Facts
[1] The applicant, Wolfgang Schnieber (“Schnieber”) is the owner of property located at 105 Fares Street, Port Colborne, Ontario. Schnieber purchased the aforementioned property on June 26, 2014.
[2] The respondents, Bruce Reginald Kenneth Saalmans and Carole Saalmans (“the Saalmans”), have owned the immediately adjacent property at 109 Fares Street, Port Colborne since June 1, 1998.
[3] The title to both 105 and 109 Fares Street is expressly subject to and together with a right-of-way.
[4] Title to both properties was converted to “Land Titles qualified” on April 19, 1999.
[5] The express right-of-way is described as Part 2 and Part 3 on Plan 59R-15154 registered August 7, 2014 in the Land Titles Division for Niagara South (59).
[6] This right-of-way is approximately eight feet wide and runs for 59 feet from the street to the back of the properties.
[7] The Saalmans have erected a fence consisting of a chain link fence and a board fence in the middle of the right-of-way.
The Position of the Applicant
[8] The applicant submits that the property shown as Parts 2 and 3 on Plan 59R-15154 is subject to an express right-of-way in favour of the applicant’s property for use as a mutual driveway between the two properties.
[9] The fence erected by the respondents in the middle of the right-of-way obstructs the use of the right-of-way.
[10] The chain link portion of the fence was erected by the respondents approximately in the early 2000s. The applicant requests the removal of both the chain link fence and board fence to allow Parts 2 and 3 on Plan 59R-15154 to serve as a mutual driveway and for access to the rear of the property.
[11] The fence interferes with the use of the mutual right-of-way that is registered on the title to both of the properties.
[12] The applicant states that witness statements from neighbours make it clear that it would be impossible for the respondents to establish a right to block the right-of-way, especially since the property was converted to Land Titles qualified on April 19, 1999.
[13] In summary, the applicant wishes the fence removed to restore the use of the right-of-way.
The Position of the Respondents
[14] The respondents state that the board fence has been on the property for longer than ten years and prior to the conversion of Land Titles and, as a result, the respondents have a right to leave the board fence as is situated by them.
[15] Further, the respondents state that the current owners, along with the predecessors in title of 105 Fares Street, have abandoned the use of the right-of-way either expressly or by circumstances.
[16] In the alternative, the respondents submit that the two properties have been treated as separate and independent and that a more recent wire mesh fence has been brought forward from an existing wood fence to the front of the property. The respondents state that that has existed for approximately 15 years with the express consent of the owners of both 105 Fares and 109 Fares Street.
[17] The respondents further state the use for which the right-of-way was created no longer exists and, as a result of all circumstances, is now extinguished.
[18] It is of importance to note that the respondents, during the hearing of the motion, conceded that the chain link fence erected in the 2000s, and after Land Titles qualified came into effect, must be taken down by the respondents.
Law and Analysis
[19] It is clear that possessory rights cannot be obtained against property registered in Land Titles. With respect to the lands at issue, Land Titles qualified applies from April 19, 1999.
[20] The applicant purchased 105 Fares Street in 2014. The respondents owned 109 Fares Street since mid-1998.
[21] The issue for the court is whether prior to the 19th of April 1999, the respondents have proven on a balance of probabilities that the right-of-way was abandoned and thus extinguished so the fences should remain on the right-of-way.
[22] The respondents Saalmans did not own the property until June 1, 1998, that is approximately 10 months prior to the conversion to Land Titles qualified. Accordingly, the respondents have very little firsthand knowledge of the property prior to 1999.
[23] Mr. Saalmans also stated in his affidavit sworn the 29th of February 2016 that he and the prior owner of 105 Fares Street had agreed to the installation of a chain link fence through the right-of-way in the early 2000s. This is very problematic for two reasons. First, Land Titles qualified occurred on April 19, 1999 and one cannot claim possessory title after that date. Secondly, a release of interest in an express right-of-way must be in writing pursuant to the Statute of Frauds, R.S.O. 1990 c. S.19. It is clear that no written release was registered on the titles to the property.
[24] The applicant Schnieber acquired the property in 2014, so there is no relevant firsthand evidence from him regarding the right-of-way prior to 1999.
[25] Mr. Ricky Laroche swore an affidavit on 21st February 2016 on behalf of the respondents. Mr. Laroche stated that there was always a fence where the current board fence is today and that this was in existence for a minimum of 10 years prior to the Land Titles conversion. He asserts that the applicant’s predecessor in title abandoned the right-of-way by nonuse.
[26] However, in cross-examination held on April 14, 2016, Laroche confirmed that he was a tenant at 109 Fares from approximately 1986 to 1988. He confirmed that the chain link fence which continues from the wooden fence was not there when he was a tenant. He could not confirm if the wooden fence between the properties now is in the same location as the chain link fence or in a different location. He further could not confirm the location of the board fence and confirmed that he did not know what the garage at the back of 109 Fares was used for. Therefore, his evidence for that very short duration of time is of little relevance.
[27] Pamela Beck (also known as Pamela Williams) swore an affidavit on the 21st of February 2016 and a further affidavit on the 29th of February 2016.
[28] In para. 6 of the affidavit of February 21, 2016 Ms. Williams stated as follows:
“I can unequivocally state that between the properties located at 109 and 105 Fares Street in Port Colborne there has always been a fence, in its present location dividing these two (2) properties. This fence has been located in its present location, and is marked by a board fence at the present time. Over the years, this fence has been upgraded and simply repaired from time to time….”
[29] In her cross-examination held on the 29th of March 2016, Ms. Williams confirmed that when she made this statement it was not from personal firsthand knowledge (Transcript of cross-examination of Pamela Williams, page 5).
[30] Ms. Williams further stated in her cross-examination that she was uncertain if the board fence had been replaced, altered, shortened or extended.
[31] Further, in Ms. Williams’ affidavit of February 21, 2016, at para. 9, Ms. Williams stated as follows:
“Since coal has not used to heat this property since the 1970’s, the front portion of the right-of-way between the properties was not used.”
[32] Ms. Williams in her cross-examination further admitted she moved away from the neighbourhood in 1975, visited her mom back in the neighbourhood a couple of times per week, and did not move back until 2001. She admitted that it was possible people were using the right-of-way when she was not there to observe.
[33] Mr. Saalmans, in his affidavit sworn 29th February 2016, confirmed that the tenants of 105 Fares Street continued to use the right-of-way for passage of vehicles into the back yard until he erected a fence sometime in the 2000s after the conversion to Land Titles qualified.
[34] Therefore, I ascribe very little weight and relevance to the affidavits of Ms. Williams.
[35] In the case of 2108133 Ontario Inc. v. Kabcan Foods Ltd., [2009] O.J. No. 951, the court, in para. 8, summarized the law regarding the abandonment of a right-of-way. The court stated as follows:
The law regarding abandonment of an express right-of-way is well settled. The following principles apply:
Abandonment is a question of fact. (455645 Ontario Ltd. v. Rousseau (1981), 19 R.P.R. 1 (Ont. H.C.) at para. 25).
The onus of establishing the loss or extinction of an express right-of-way by abandonment or non-user rests upon the party asserting it. (Liscombe v. Maughan (1927), 62 O.L.R. 328 (Ont. C.A.) at para. 28; 455645 Ontario Ltd. v. Rousseau, supra, at para. 31; Peters v. Palmer (2000), 34 R.P.R. (3d) 143 (Ont. S.C.J.) at para. 21).
The only way in which a right-of-way can be extinguished by the act of the parties interested is by release, actual or presumed. (Liscombe v. Maughan, supra, at para. 28).
In the absence of an actual release, non-user is essential to abandonment. (455645 Ontario Ltd. v. Rousseau, supra, at para. 27; Peters v. Palmer, supra para. 22).
Non-user and nothing more, however, is not sufficient to permit a conclusion of abandonment. (455645 Ontario Ltd. v. Rousseau, supra, at para. 27).
When a right of way has its origin in an express grant, it is not lost by mere non-user; there must be some intention to abandon this property right. (Closs v. Ferguson (1923), 24 O.W.N. 199 (Ont. Div. Ct): Peters v. Palmer, supra, at para. 21). The intention to abandon means that the person entitled to the right-of-way has knowingly, and with full appreciation of his rights, determined to abandon it. (Liscombe v. Maughan, supra; Peters v. Palmer, supra).
In some circumstances, evidence of non-user may lead to a finding of acquiescence on the part of the holder of title to the right-of-way. 455645 Ontario Ltd. v. Rousseau, supra, at para. 29). Non-user will not have the effect of establishing abandonment unless a release can be implied from such non-user and the surrounding circumstances. (Liscombe v. Maughan, supra, at para. 28).
All of the evidence bearing upon the issues of non-user, acquiescence and abandonment must be considered.
Including the express right-of-way in a registered conveyance is evidence that abandonment was not intended by the owner of the dominant tenement or not presumed by the owner of the servient tenement. (Liscombe v. Maughan, supra at para. 32).
Conclusions
[36] It is clear that possessory rights cannot be obtained against property registered in Land Titles unless those rights were in effect or acquired prior to the conversion to Land Titles.
[37] Counsel for the respondents conceded in the hearing that the chain link fence erected in the 2000s must be taken down. It was put up after Land Titles and no adverse possession is possible with respect to the chain link fence.
[38] The right-of-way is expressly for the benefit of both 105 Fares Street and 109 Fares Street.
[39] The evidence does not support the presumption or inference that the past owners have abandoned the right-of-way leading to its extinguishment.
[40] Therefore, both the chain link fence and the board fence, insofar as it interferes with the right-of-way, must be removed.
Orders Made
[41] The following judgment follows:
(1) By way of declaration, the respondents are unlawfully interfering with a mutual right-of-way upon lands described as Parts 2 and 3, Plan 59R-15154 existing upon the applicant’s and the respondents’ properties described respectively as PIN 64164-0125 (LT), being 105 Fares Street, Port Colborne and PIN 62164-0124 (LT), being 109 Fares Street, Port Colborne.
(2) An injunction shall issue requiring the respondents to:
(i) remove all fencing material that is interfering with the use of the right-of-way at their own expense; and
(ii) restore to a level, even surface the area from which the fencing material has been removed, at their own expense.
(3) A permanent injunction shall issue requiring the respondents to refrain from interfering with, obstructing, parking vehicles, or otherwise impeding the use of the right-of-way by the applicant and his successors and assigns.
(4) The order of this court shall be registered on title to both 105 Fares Street, and 109 Fares Street, Port Colborne, Ontario.
Costs
[42] Unless otherwise agreed, submissions on costs shall be in writing, limited to two pages, plus a Bill of Costs, plus any offers to settle. The applicant’s submissions are due by August 5, 2016, and the respondents’ submissions are due two weeks thereafter on August 19, 2016.
Maddalena J.
Released: July 22, 2016