CITATION: English et al. v. Perras et al., 2017 ONSC 7365
COURT FILE NO.: 16-70991
DATE: 2017/12/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
James English and Jill Perry
Applicants
– and –
David Perras and Brenda Perras
Respondents
Roberto Aburto and Jacob Polowin for the Appplicants
Roxie Graystone for the Respondents
HEARD: December 5, 2017
JUSTICE SALLY GOMERY
[1] Good fences do not always make good neighbours.
[2] James English and Jill Perry live at 371 Third Avenue in Ottawa. David and Brenda Perras live next-door at 371 Third Avenue. The houses are just over 14 feet apart. A shared driveway runs between the houses. Each house has a garage and space for parking at the back of the property.
[3] The houses were built sometime prior to 1928. Mr. English has lived at 371 Third Avenue since 1980. The Perras’ moved into 373 Third Avenue in 2003.
[4] In November 2016, Mr. and Mrs. Perras had a fence built down the middle of the shared driveway, right inside their property line. As a result of the fence, Mr. English and Ms. Perry can no longer use the driveway to park theirs car on their property. There is not enough space to drive a car between the fence and a retaining wall that runs along the outer side of the driveway on 371 Third Avenue. Mr. and Mrs. Perras still have full use of the driveway, because there is no similar retaining wall on 373 Third Avenue.
[5] Mr. English and Ms. Perry are asking the Court to recognize that they have the right to use the Perras’ side of the shared driveway and that, as a result, the Perras’ must remove the fence.
What is the legal basis for the applicants’ claim?
[6] Mr. English and Ms. Perry claim that they have a prescriptive easement over the Perras’ property. An easement is a right to cross or otherwise use someone else's land for a specified purpose. A prescriptive easement has four characteristics:
There is a “dominant tenement” that benefits from the easement, and a “servient tenement” that must allow the use of the easement.[^1] The owner of the dominant land can only use the easement so long as they own the land. When they sell the dominant property, the new owner gets the benefit of the easement.
The easement must “be reasonably necessary for the enjoyment” of the dominant land.[^2] It must go beyond just making the dominant property more valuable or providing a personal benefit to its owner.
The two properties cannot be owned by the same person;[^3] and
The easement must be defined with adequate certainty.[^4] The court must be able to determine the scope of the right granted over the servient land.
[7] The doctrine of the lost modern grant is one way that a property owner may seek to establish that they have a prescriptive easement over another property. The underlying idea is that owners of the servient property granted a right-of-way or use to the owners of the dominant property sometime in the past, but it was not recorded formally on title.[^5]
[8] To prove that their property benefits from a lost modern grant, the owner of the dominant land must show that they made use of the easement over the servient land in a continuous, uninterrupted, open, and peaceful way for a period of at least twenty years.[^6] The twenty year period must have occurred before the properties were registered in Ontario’s land titles system.
[9] A party claiming a prescriptive easement must also show that the other land owner acquiesced to the use of their property. This is often the most difficult part of the test to meet. The burden of proving a lost modern grant is high, because courts do not want a landowner’s “neighbourly accommodation” to result in a legal burden on their property.[^7]
[10] The claimant must show that they did not need to get permission to use the other property during the 20 year period. Needing permission implies that the claimant did not have a right, but a licence. The claimant must likewise show that the other property owner did not object to their use of the land during the 20 year period. Objection is again inconsistent with the idea that the claimant had a right to act as they did.
Is there an easement over 373’s half of the shared driveway?
[11] Mr. and Mrs. Perras argue that Mr. English and Ms. Perry have not proved 20 years of peaceful, uninterrupted and continuous use of the shared driveway. They further argue that a right-of-way over their property is not reasonably necessary for the enjoyment of 371, and that the scope of the alleged easement is not certain.
Have Mr. English and Ms. Perry proved 20 years of use with the acquiescence by 373?
[12] 371 and 373 Third Avenue were registered on the land titles system in 1996. To succeed in their claim for a prescriptive easement, Mr. English and Ms. Perry must therefore show that, prior to 1996, the owners of 371 used the shared driveway for at least 20 years, to the knowledge of the owners of 373, but without their objection or permission from them.
[13] A right-of-way was described in early 1980 but not registered on title. A land surveyor, F.H. Gooch, prepared a description of 373 Third Avenue. According to this January 22, 1980 description, the property was subject to a right-of-way in favour of 371 Third Avenue. The right-of-way was over a strip of land, 60 feet in length and 4 feet in width, perpendicular to the street. The description matches the portion of the shared driveway owned by 373. The description also noted that 373 had a right-of-way over a corresponding strip of property owned by 371.
[14] Mr. English and Ms. Perry have produced an affidavit from Brian MacNamara. Mr. MacNamara’s parents purchased 373 Third Avenue in 1957. He lived in the house until 1976, and visited it regularly about once a month “while in school” from 1976 to 1979. It was Mr. MacNamara’s mother who sold the house to Mr. and Mrs. Perras in 2003.
[15] Mr. MacNamara says that, between 1957 and 1979, the residents of 371 Third Avenue used the shared driveway with 373 Avenue to get to and from their parking spaces behind the property. Mr. MacNamara’s family used the shared driveway in a similar way. Mr. MacNamara does not mention his parents giving any permission to their neighbour’s use of the shared driveway, nor objecting to it.
[16] Mr. and Mrs. Perras argue that I should infer that Mr. MacNamara was a child during some of the years he lived at 373 Third Avenue, and that he cannot give meaningful evidence of any arrangement between his parents and their neighbours at the time. I am not prepared to make this inference. The Perras’ did not cross-examine Mr. MacNamara, nor did they file any affidavit contradicting his account.
[17] Mr. MacNamara’s evidence is consistent with photos and maps obtained from the City of Ottawa, which show the layout of 371 and 373 Third Avenue from 1928 to 2014. Each house has had a garage at the back since at least 1928. There is no rear laneway behind the houses. The only way to reach the back of the property by car is by going between the two houses from the front.
[18] The first crude map from 1928 shows really nothing more than the configuration of the houses and the garages on the relevant block of Third Avenue. It does not indicate whether there is a shared laneway between 371 and 373. However, the exact same sort of map from 1958, which again does not show any driveways, is accompanied by an aerial photo. The photo shows a shared driveway between 371 and 373 Third Avenue. There is no reason to conclude that the driveway was not there a year earlier, or thirty years earlier, as it was always the only path to the rear garage.
[19] The historic maps and aerial photos do not prove that the previous owners of 373 acquiesced to their neighbours passing over their property by using the shared driveway. The court can however infer acquiescence in a case like this. In Henderson v. Volk, another case involving a shared laneway, the Court of Appeal said:
The evidence required to establish title by prescription will vary with the nature of the user. The use of a passageway by noisy delivery trucks would be hard to hide. The use of a lane for passage by tractor trailer rigs with motors roaring and air brakes hissing would be difficult to disguise. In those instances, the owner of the servient tenement can readily be taken to know of the user of his property. If he makes no objection then his acquiescence to the use can readily be inferred.[^8]
[20] More recently, in Condos and Castles Realty Inc. v. Janeve Corp., the Court of Appeal held that the plaintiff had established a prescriptive easement because this was “a case of straightforward vehicular use of a laneway as a right-of-way”.[^9] The Court inferred the existence of the easement based on the physical lay-out of the properties, including a garage accessible only over a right-of-way. It also took into account “the plain and obvious vehicular use of the right-of-way by the occupants of 842 King Street West, as described by witnesses who were present at the time”.[^10]
[21] The Court concluded that courts ought to protect the dominant owner’s reliance interest “where the usage has been open and uninterrupted for many years.”[^11] The initial burden of proof is on the claimant to prove the existence of an easement.[^12] But once the claimant had proved facts that support an inference of acquiescence over 20 years of use, the evidentiary burden passes to the respondent to lead evidence to rebut the inference by proving the use was by permission.[^13]
[22] As in Henderson v. Volk and Condos and Castles, it defies common sense in this case to argue that the MacNamaras and earlier owners of 373 were unaware of their neighbour’s use of the shared driveway to reach the garage and parking spots behind their house. There is no evidence that they ever objected, or that either neighbour sought permission from the other to continue using the driveway in the period prior to 1979.
[23] Mr. and Mrs. Perras say that an inference of acquiescence from 1957 to 1979 is fundamentally undermined by an agreement signed in 1980. On February 26, 1980, the owner of 373 Third Avenue, Harry MacNamara, signed an agreement with Helen Nicholson, the executrix of estate of Harry McLeod, who had owned 371. In this agreement, each party granted the other the right to use the shared driveway, and to share expenses related to its maintenance and repair, for a period of 21 year minus one day.
[24] Mr. and Mrs. Perras argue that the 1980 agreement is fundamentally incompatible with the existence of an easement in favour of 371 Third Avenue. If the easement already existed, there was no need to obtain a right-of-way.
[25] I disagree. If an easement already existed based on 20 years of uninterrupted, continuous and peaceful use, it did not wink back out of existence just because the parties’ predecessors in title failed to recognize it at the time. The failure of property owners to formally recognize an easement is the whole rationale for the doctrine of the lost modern grant. Neglecting to record the easement on title does not defeat it, if the claimant can prove that it exists. Similarly, neglecting to recognize the right in a private agreement does not defeat the claim, if the court agrees that an easement existed prior to its signature.
[26] In some cases, an agreement could rebut the inference of acquiescence. If there were any evidence that the agreement followed some sort of disagreement between the owners of 371 and 373 about their respective rights over the shared driveway, then some response from Mr. English on this point might be required. But there is no such evidence. There is only Mr. MacNamara’s affidavit and Mr. Gooch’s description confirming the rights-of-way of both 371 and 373. In this context, the 1980 agreement does not rebut the inference of acquiescence in the 21 preceding years. It suggests only that the parties wanted to clarify their rights and obligations in the wake of Mr. McLeod’s death and the impending sale of 371 to Mr. English.
[27] For these reasons, I conclude that Mr. English and Ms. Perry have established uninterrupted, continuous and peaceful use by the owners of 371 Third Avenue of a right-of-way over the shared driveway from 1957 to 1979, with the acquiescence of the owners of 373 Third Avenue.
Is the use of the driveway reasonably necessary for the enjoyment of 371 Third Avenue?
[28] In his affidavit of December 19, 2016, Mr. English states that the only way to get a car to the parking spaces at the back of his property is by using the shared driveway. When the Perras’ began to tear up the driveway on November 16, 2016 in preparation for building the fence, Mr. English was advised by an Ottawa By-law enforcement officer to remove his car from the parking space behind the house, because the officer had no ability to halt the work. Since then, he and his wife have not been able to use the two parking spaces on their property. They have been forced to park their two cars on the street, resulting in numerous parking tickets and the denial of the full enjoyment of their property rights.
[29] Mr. and Mrs. Perras have not attempted to argue that the use of the shared driveway is a mere luxury for their neighbours. Instead, they argue that the problem is not the fence, but the rock retaining wall running parallel with the outside edge of the driveway on 371.
[30] The Perras’ have produced an affidavit from Brian Webster, an Ontario land surveyor. He prepared a survey of the properties in June 2017. The survey shows that 371’s half of the shared driveway in front of the house is narrowed due to the retaining wall. The Perras’ argue that, were it not for the wall, Mr. English and Ms. Perry’s car would fit in their half of the driveway, and they would be able to drive to the back of their property as they do. As a result, they say that the easement is not reasonably necessary for the enjoyment of 371.
[31] This argument is speculative. Mr. Webster does not say when the retaining wall was built or the purpose it serves. There is no reason to assume that it is not practically necessary. In fact, Mr. Webster’s use of the term “rock retaining wall” as opposed to “decorative rock wall” or simply “rock wall” suggests the opposite. There is also no evidence on when the wall was constructed. It may have been there since the house at 371 Third Avenue was built.
[32] In these circumstances, I cannot conclude that Mr. English and Ms. Perry could simply get rid of the retaining wall. Mr. English’s sworn statement that the easement is required for access to the back property is uncontradicted. I find that a right-of-way is reasonably necessary to the enjoyment of 371.
Is the easement defined with adequate certainty?
[33] Mr. and Mrs. Perras say that the easement claimed by their neighbour is too vague. They point to cases where courts have emphasized the need to delineate the exact scope of the right-of-way at issue.[^14]
[34] These cases do not assist the respondents. In Mihaylov, the Court of Appeal concluded that an easement permitting the applicant to run a waterpipe over another person’s property was defined with adequate certainty because “the parties know where it is located”.[^15] In Ambrovic, the District Court held that a pedestrian right-of-way was not too wide or vague, because the entry and exit points were “relatively clear”, even though the exact route of the path had been altered slightly over the years that it had been used.[^16]
[35] The parameters of the easement in this case are obvious. Until November 2016, the owners of 371 Third Avenue passed over four feet of their neighbour’s half of the shared driveway. In January 1980, surveyor Gooch described this right-of-way in precise detail. This is exactly the same easement now claimed by Mr. English and Ms. Perry.
[36] The applicants have met this part of the test for a prescriptive easement.
Conclusion
[37] The application is granted. Mr. English and Ms. Perry are entitled to the orders set out at paragraphs 1(a), (c) and (d) of their notice of application. The orders should specify that the respondents have a maximum of 14 days to remove the fence and provide access to the applicants over the shared driveway. I make no order for damages because the applicants abandoned this part of the claim prior to the hearing.
[38] If the parties are unable to agree on costs, the applicants may submit a cost outline and submissions to my attention within 30 days of issuance of this judgment. The respondents may submit their costs submissions within 30 days thereafter. Each set of submissions must be no longer than three pages in length, exclusive of any cost outline.
Justice Sally Gomery
Released: 2017/12/08
CITATION: English et al. v. Perras et al., 2017 ONSC 7365
COURT FILE NO.: 16-70991
DATE: 2017/12/08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
James English and Jill Perry
Applicants
– and –
David Perras and Brenda Perras
Respondents
REASONS FOR JUDGMENT
Justice S. Gomery
Released: 2017/12/08
[^1]: 394 Lakeshore Oakville Holdings Inc. v. Misek, 2010 ONSC 6007 at para. 64-65.
[^2]: Lakeshore Holdings, para. 69.
[^3]: Lakeshore Holdings, para. 72.
[^4]: Lakeshore Holdings, para. 73 and
[^5]: Kaminskas v. Storm, 2009 ONCA 318 at para. 20.
[^6]: Section 31, Real Property Limitations Act R.S.O. 1990, c. L.15.
[^7]: Lakeshore at paras. 95 and 96.
[^8]: 35 O.R. (2) 379, 1982 1744 (ON CA), [1982] O.J. No. 3138 (C.A.), at para. 19.
[^9]: 2015 ONCA 466.
[^10]: Condos and Castles at para. 18.
[^11]: Condos and Castles at para. 9, citing from 1043 Bloor Inc. v. 1714101 Ontario Inc., 2013 ONCA 91, 114 O.R. (3d) 241 at para. 105.
[^12]: Condos and Castles at para. 10.
[^13]: Condos and Castles at para. 17.
[^14]: Mihaylov v. 1165996 Ontario Inc., 2017 ONCA 116; Ambrozic et al. v. Pinheiro et al., 1989 4067 (ON SC), 1989 CarswellOnt 624, 71 O.R. (2d) 255 (Ont. Dt. Ct.).
[^15]: Mihaylov at para. 91.
[^16]: Ambrovic at para. 17.