COURT FILE NOs.: CV-15-538471 and CV-16-547696
DATE: 20180627
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TALYN TERZIAN
Applicant
– and –
NIRANJAN VIVEKANANDAN and SARA AZARGIVE
Respondents
Alan Dryer and Orly Kahane-Rapport, for the Applicant in CV-15-538471 and the Respondents in CV-16-547696
Sarah Turney and Jennifer Parker, for the Respondents in CV-15-538471 and the Applicants in CV-16-547696
AND BETWEEN:
NIRANJAN VIVEKANANDAN and SARA AZARGIVE
Applicants
– and –
TALYN TERZIAN and KEVIN GILMOUR
Respondents
HEARD: April 26, 2018
E.M. Morgan J.
I. The disputed lands
[1] This Application and Counter-Application entails a property boundary dispute between two neighbouring houses in Toronto. Talyn Terzian (“Terzian”) owns 45 Lawrence Ave. East (“45 Lawrence”) and has resided there with her spouse, Kevin Gilmour, since acquiring title on July 1, 2008. Niranjan Vivekanandan and Sara Azargive (together “Vivekanandan”) own and reside at 47 Lawrence Ave. East (“47 Lawrence”) and have resided there since acquiring title on May 1, 2012.
[2] The disputed land runs north-south between the two properties (the “Disputed Area”) and is divided into two parts: one part is alongside the driveway of 47 Lawrence (the “Driveway Area”), and the other part is in the backyard of 47 Lawrence (the “Backyard Area”). The entire Disputed Area is shown on surveys and descriptions of the properties as belonging to 45 Lawrence.
[3] Vivekanandan seeks a declaration that they have a right to use both parts of the Disputed Area, and that they have acquired such rights through their predecessors in title by adverse possession, easement, or estoppel. Terzian seeks a declaration that her title to 45 Lawrence is unencumbered by any possessory clam by Vivekanandan.
[4] The Reference Plan for 47 Lawrence shows the Disputed Area as clearly as any descriptive words. On this plan, the Driveway Area is shaded in orange and the Backyard Area is shaded in blue. The Reference Plan forms Schedule “A” to these reasons for judgment.
[5] For the purposes of this judgment, the Driveway Area under consideration is only the portion that lies north of the island in between the two properties. That island begins at the street on the south end and runs northward to a point, whereupon the western edge of the 47 Lawrence driveway veers further to the west. The island is roughly shaped like an elongated triangle, and is covered with grass and shrubbery. The boundary between 45 and 47 Lawrence runs somewhere down the middle of the island.
[6] The record contains photographic evidence of the Disputed Area from a number of different perspectives. The Driveway Area can be seen in the photograph at Schedule “B” hereto. This photo shows the narrowest portion of the driveway leading to the backyard garage of 47 Lawrence. Here, the registered boundary between 45 and 47 Lawrence is not at the curb to the west of the 47 Lawrence driveway; rather, it roughly coincides with the eastern edge of the double row of paving stones on the west side of the 47 Lawrence driveway.
[7] The bottom portion of the 47 Lawrence in front of the two houses and leading to the street can be seen in the photograph at Schedule “C” hereto. The driveway of 45 Lawrence lies to the west of the grassy island. As already indicated, the registered property boundary line in front of the houses and leading to the street is somewhere in the middle of the grass island between the two driveways.
[8] Although Vivekanandan claims possessory rights to the portion of the island that lies to the east of the boundary line, there is no real evidence to support that claim. Nothing in the record indicates that the predecessors in title to 47 Lawrence ever used, occupied, maintained, or in any other way exerted rights over the portion of the grassy island that lies on the 45 Lawrence side of the property boundary.
[9] The Backyard Area can be seen from the photograph at Schedule “D” hereto. This photo is taken from the upper floor of 47 Lawrence. The registered property boundary does not coincide with the vine-covered fence that runs from the northeast corner of the 45 Lawrence house to the southwest corner of the 47 Lawrence garage; rather, it runs roughly along the earth flower bed that is adjacent to the fence and which forms the western edge of the 47 Lawrence garden.
[10] Title to 45 Lawrence was converted from the old Registry system to Land Titles on August 26, 2002 (the “Conversion Date”). Accordingly, any claims for an unregistered possessory title in favour of 47 Lawrence – either by adverse possession or prescriptive easement – must have arisen prior to that date.
[11] The Land Titles Act, RSO 1990, c. L15, s. 15(1) provides that once a property enters the Land Titles system, possessory interests can no longer accrue. Thus, while evidence of pre-existing possessory rights may in the right circumstances be confirmed through subsequent conduct, any possessory rights of Vivekanandan as the current owner/occupier of 47 Lawrence must have been established by their predecessors in title prior to the Conversion Date.
[12] A glance at the physical configuration of the Disputed Area reveals two things about the Vivekanandan claims: the Driveway Area is unlikely to qualify for an adverse possession claim but might qualify for a prescriptive easement claim, and the Backyard Area is unlikely to qualify for a prescriptive easement claim but might qualify for an adverse possession claim. The reasons for this are self-evident in viewing the photographs above.
[13] In brief, the Driveway Area is adjacent to the driveway belonging to 47 Lawrence and is located in a position where it is likely to be used for parking and in passing by the house to access the garage; at the same time, it is not exclusively used by 47 Lawrence and is not partitioned off or otherwise inaccessible to the residents of 45 Lawrence. The Backyard Area, on the other hand, is fenced off from 45 Lawrence and is accessible exclusively to the residents of 47 Lawrence; at the same time, it does particularly service the 47 Lawrence lands and cannot be said to be reasonably necessary for the enjoyment of 47 Lawrence.
[14] The physical configuration, however, is only the starting point of the analysis. The use to which each area has been put is also a fundamental ingredient in determining whether an unregistered possessory exists. Each of the areas must be examined in turn.
II. The Driveway Area
[15] In Depew v Wilkes (2002), 2002 CanLII 41823 (ON CA), 60 OR (3d) 499, at para 18, the Court of Appeal set out the essential elements of proscriptive easement:
The authors of Anger and Honsberger: Law of Real Property, 2nd ed. (1985) at p. 925 describe an easement as a ‘right annexed to land which permits the owner of the dominant tenement to require the owner of the servient tenement to suffer or not to do something on such land’. They describe the four essential qualities of an easement in these terms:
(i) there must be a dominant and a servient tenement;
(ii) an easement must accommodate the dominant tenement;
(iii) dominant and servient owners must be different persons; and
(iv) a right over land cannot amount to an easement unless it is capable of forming the subject-matter of a grant.
[16] Further, the use of the land by the dominant tenement must be of a minimum 20 years’ continuous duration. Again, as the Court of Appeal said in Henderson v Volk (1982), 1982 CanLII 1744 (ON CA), 35 OR (2d) 379, 382-3:
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…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.
…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…
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.
[17] The evidence in the record demonstrates that the predecessors in title to Vivekanandan engaged in “continuous, uninterrupted, open and peaceful use of the private laneway” – i.e. the driveway of 47 Lawrence, together with the Driveway Area: Condos and Castles Realty Inc v Janeve Corp, 2015 ONCA 466, para 6. Furthermore, the evidence is conclusive that they used the Driveway Area “as of right” – i.e. without objection by the 45 Lawrence predecessors in title to Terzian.
[18] Five predecessors in title to Vivekanandan, going back to 1980, provided affidavits. Each of them indicated that they used the driveway, including the Driveway Area. Andrea Candace Fedoruk, who owned 47 Lawrence with her husband, Raymond Bouchard, from 1980 to 1995, deposed that she always believed that the westerly boundary of the 47 Lawrence driveway was the curb at the western edge of the Driveway Area, and operated under the understanding that the Driveway Area was part and parcel of the 47 Lawrence property.
[19] Ms. Fedoruk also deposed that she maintained the entire driveway, including the Driveway Area, by shoveling snow and clearing it of weeds and other debris. Moreover, she specifically recalled that she and her spouse parked their car on the Driveway Area. She testified that without using the Driveway Area, the 47 Lawrence driveway was not wide enough to open the car doors. Thus, when she and her spouse parked their car by the side door of 47 Lawrence, which was the place they typically parked as it had the easiest access to the kitchen for unloading groceries, etc., they always made use of the easternmost portion of 45 Lawrence (believing at the time that it was actually the westernmost portion of 47 Lawrence) when they opened their car door.
[20] Ms. Fedoruk and her spouse owned 47 Lawrence for 15 years, but they only resided there for the first 9 of those years. In August 1989, they rented the house to Allan Morrison and his spouse, Barbara Jordan. Mr. Morrison deposed that their use of the Driveway Area was quite similar to that of Ms. Fedoruk and her spouse. They, too, typically used the side door of 47 Lawrence to go in and out of the house, and parked their car in the driveway next to the side door. This required them to use the Driveway Area for entry and exit of the car. They also recalled lifting their child in and out of the child’s car seat while the car sat in the driveway, again making necessary use of the Driveway Area for access.
[21] At the end of Mr. Morrison’s tenancy, Ms. Fedoruk rented 47 Lawrence to Marilyn Steinkopf and her spouse, Rick Jones. They lived there with their three children until May 1994. Much like Ms. Fedoruk and Mr. Morrisson, Ms. Steinkopf deposed that she always believed that the entire driveway, including the Driveway Area, was within the boundary of 47 Lawrence. As was the case with her predecessors, she indicated that she and her spouse shoveled the snow on the entire driveway up to the curb on the 45 Lawrence property, and that they removed debris and weeds from the Driveway Area.
[22] Ms. Steinkopf likewise attested to the fact that she parked her car on the driveway of 47 Lawrence near to the side door, and that they used the Driveway Area as if it were part and parcel of the 47 Lawrence driveway. She indicated that, like her predecessors, she never gave a thought to the Driveway Area being in any way separate from the rest of the driveway, and always believed that it was an integral part of the 47 Lawrence property.
[23] On January 3, 1995, Ms. Fedoruk and her spouse sold 47 Lawrence to David McCarthy and Karen Goulet-McCarthy. They owned and occupied 47 Lawrence until February 14, 1997, when they in turn sold it to Wendy and Gregory Scott Johns.
[24] As was the case with those who came before him, Mr. McCarthy deposed that it was his belief that the curb abutting the western edge of the Driveway Area was the boundary line between 45 and 47 Lawrence. He never realized that the property boundary was in fact a foot or so east of the curb. He likewise indicated that during the time that he and his spouse owned 47 Lawrence they always openly used the entire driveway, including the Driveway Area. They drove and parked their cars there, used it to open the doors and enter and exit their cars maintained it in all seasons, etc. Having been the owners of 47 Lawrence, Mr. McCarthy stated that he and his spouse at all times acted as though they were the owners of the Driveway Area as well.
[25] Wendy Moore Mandel and Gregory Scott Johns were the last owners of 47 Lawrence during the period immediately preceding the Conversion Date. They bought the property from Mr. McCarthy and Ms. Goulet-McCarthy and owned it from February 14, 1997 to October 31, 2006, when they transferred it to Pauline Aquilina. Again, Ms. Mandel deposed that she and her spouse’s use of the Driveway Area was similar to that of all of their predecessors at 47 Lawrence. That is, they believed that the curb to the east of the boundary line between 47 and 45 Lawrence was itself the boundary line. They acted in accordance with his belief by openly and continuously using the Driveway Area as of right, without ever seeking permission from the owners of 45 Lawrence.
[26] Ms. Mandel and her spouse frequently parked their cars on or near the Driveway Area. Their oldest son was born when they lived at 47 Lawrence, and they frequently lifted their son and his infant car seat out of the car. In order to do so they had to open the car doors wide, swinging the out over and themselves standing on the Driveway Area.
[27] Under the belief that they owned the entire Driveway Area, Ms. Mandel and Mr. Scott Johns substantially renovated the 47 Lawrence driveway, and included the Driveway Area in this renovation. In the spring of 2001, just prior to the Conversion Date, they removed and replaced the asphalt of the driveway. Since it was their view that they owned the entire driveway up to the curb on its western edge, they not only re-paved the driveway but placed two rows of paving stones along the east side of the curb, within the Driveway Area. Those two rows of paving stones, which for the most part comprise the rear portion of the Driveway Area (i.e. the portion to the north of the grassy island as opposed to the portion in front of the house and abutting the grassy island), can be clearly seen on the photograph at Schedule “B”.
[28] During the entire period of their ownership, Ms. Fedoruk, Mr. Morrison, Mr. McCarthy, and Ms. Mandel, along with their respective spouses, continuously and openly used the entire driveway of 47 Lawrence, including the Disputed Area. There was no interruption in their use of the Disputed Area, and no one ever challenged or interfered with their use.
[29] Importantly, none of these owners, going back to 1980, ever asked permission of the owner of 45 Lawrence to use the Driveway Area, and none of them believed that permission was needed. They each used and maintained the Driveway Area as of right, under the belief that they were the exclusive owners. They parked in the driveway, over portions of the Driveway Area, and at times would park along adjacent to the Driveway Area and use it to exit their vehicles, all in the firm belief that as owners or residents of 47 Lawrence they were perfectly entitled to do so.
[30] Turning to the predecessors in title to Terzian, Aymot Michael Aymong owned and occupied 45 Lawrence from October 1963 to June 2007 – i.e for the more than the entire 20 year period prior to, and for 5 years subsequent to, the Conversion Date of August 26, 2002. His evidence effectively corroborates that of Vivekanandan’s predecessors in title to 47 Lawrence in a number of significant respects. He deposed that:
(a) there were never any discussions between himself and any of Vivekanandan’s predecessors about the boundary line between 45 Lawrence and 47 Lawrence;
(b) he never restricted Vivekanandan’s predecessors’ use and occupation of the Driveway Area;
(c) he never prevented Vivekanandan’s predecessors from parking their respective cars and opening their doors over the Driveway Area;
(d) Vivekanandan’s predecessors were always free to use the Driveway Area; and
(e) he acquiesced to each of Vivekanandan’s predecessor’s use of the Driveway Area.
[31] Early in their ownership of 47 Lawrence, Ms. Fedoruk and her spouse constructed a gate across the driveway, at the entrance to the backyard of their house. That gate remained in place until 1997, when Ms. Mandel and Mr. Scott Johns replaced it with a wrought iron gate that remains in place until today. The original gate, as well as the current one, stretched the entire width of the driveway, including across the Driveway Area. Neither Ms. Fedoruk nor Ms. Mandel or their respective spouses sought permission from Mr. Aymong or his wife to construct the gate, and neither of those predecessors to Vivekanandan believed that permission was required for the construction.
[32] Likewise, the Aymongs never disputed the work or raised any issue concerning the fact that the owners of 47 Lawrence built a barrier across part of the property that formally belonged to 45 Lawrence. It was Mr. Aymong’s evidence that although he knew that the Driveway Area belonged to 45 Lawrence, he never raised this with any of the successive owners or tenants of 47 Lawrence. He stated in cross-examination that he assumed that each of the residents of 47 Lawrence were under the impression that the entire driveway, including the Driveway Area, belonged to their property and not to his. He knew that such a belief was incorrect as he had inspected the survey of his property, but he remained silent. In that way he acquiesced in his neighbours using the Driveway Area as if it belonged to 47 Lawrence.
[33] The fact is that anyone not specifically alerted to the location of the property boundary between 45 Lawrence and 47 Lawrence would assume that the Driveway Area is entirely within the bounds of 47 Lawrence. The curb lying to the weast of the formal boundary is what provides a visible demarcation of the separation of the two properties.
[34] The only conclusion to be drawn from the evidence of the occupants of 47 Lawrence from 1980 to the Conversion Date is that they have demonstrated their use and enjoyment of the Driveway area as a form of right-of-way under a claim of right – i.e. not by permission of the owner of 45 Lawrence. This use was continuous, uninterrupted, open and peaceful. The criteria for a prescriptive easement over the Driveway Area from the northern end of the grassy island to the gate separating the 47 Lawrence driveway from the backyard have been made out.
III. The Backyard Area
[35] Adverse possession claims are governed by sections 4, 13, and 15 of the Real Property Limitations Act, RSO 1990, c. L.15. That statute establishes a 10-year limitation period in which a formal title holder must bring an action to recover possession. To establish title by adverse possession as against the legal owner, a claimant must establish on the evidence:
Actual possession for the statutory period;
That such possession was with the intention of excluding the true owner; and
That the true owner’s possession was effectively excluded for the statutory period.
Osman v. Heath, 2016 ONSC 4812, at para 49, citing Keefer v. Arillotta (1976), 1976 CanLII 571 (ON CA), 13 OR (2d)680 (Ont CA).
[36] The claimant of possessory title must demonstrate that the possession of the land by themselves and/or their predecessors was “open, notorious, peaceful, adverse, exclusive, actual and continuous”: Teis v Ancaster (Town), 1997 ONCA 1688 at para 13. Moreover, to establish an intention to exclude the deeded owner from possession of the disputed land, the claimant must satisfy the court that their use was inconsistent with that of the deeded owner: Cruickshank v Hutchinson, 2009 CanLII 2903, at para 55 (SCJ). This applies equally to cases where the adverse possession claimant occupied the land as a result of an erroneous belief as to where the property line is located. “Where possession is due to a mistake regarding the location of the ‘true’ lot line, the requirements for possessory title can be met where the claimant has continually used the land and the true owner has been out of possession of the land for the requisite time”: Heng v Rodriguez, 2015 ONSC 1677, at para 31.
[37] The gate built by Ms. Fedoruk across the top of the 47 Lawrence driveway, which was later improved upon by Ms. Mandel, created a barrier to the backyard of 47 Lawrence that excluded all others from entering the backyard without obtaining the permission of the owners or residents of 47 Lawrence. This included Mr. Aymong during the entire 20 years prior to the Conversion Date.
[38] Mr. Aymong deposed that he never entered the backyard of 47 Lawrence except with permission of whoever resided there at the time. On the rare occasions that he entered the backyard of 47 Lawrence, he did not do so for the purpose of using or exercising control over the Disputed Area or the Backyard Area. Rather, it was to access his own fence or possibly to retrieve something that had accidentally landed in his neighbour’s yard.
[39] Ms. Fedoruk deposed that she was certain during the period of her ownership of 47 Lawrence that she and her spouse owned the entire backyard to the east of the 45 Lawrence garage and the fence running between the two properties. As shown in Schedule “D”, the fence went from the corner of the 47 Lawrence garage to the corner of the 45 Lawrence house.
[40] Ms. Fedoruk stated that she enjoyed exclusive, continuous, and open possession of the entire backyard, including the Backyard Area, during the entirely of her and her spouse’s occupation of 47 Lawrence. Their children played in the backyard year-round and she and her spouse tended the garden, including the vines and shrubberies that abutted the eastern side of the fence and the 45 Lawrence garage wall. She testified that Mr. Aymong and his spouse never entered the backyard of 47 Lawrence, except with her or her spouse’s permission.
[41] During the period in which he rented 47 Lawrence from Ms. Fedoruk, Mr. Morrisson’s use of the Backyard Area followed a similar pattern. He, too, believed that 47 Lawrence included the Backyard Area, and he therefore felt entitled to use the entire the backyard of 47 Lawrence. During his tenancy, the backyard of 47 Lawrence remained physically separated from 45 Lawrence by the 45 Lawrence garage, the fence running between the two backyards, and the gate across the top of the 47 Lawrence driveway. Like his predecessor in 47 Lawrence, Mr. Morrisson and his spouse, children, and guests used their backyard exclusively, without seeking any permission from the occupant/owner of 45 Lawrence. Their children played in the backyard, including the Backyard Area, and they family enjoyed exclusive possession of the entire backyard.
[42] When Ms. Steinkopf and her spouse took over residence of 47 Lawrence in May 1994, they continued the same pattern of use of the backyard. As with her predecessors, Ms. Steinkopf believed that 47 Lawrence included the entire Backyard Area. She deposed that the backyard was physically separated from 45 Lawrence by the 45 Lawrence garage, the fence between the two houses, and the gate across the top of the 47 Lawrence driveway.
[43] The backyard was used exclusively by Ms. Steinkopf, her spouse, their children, and their guests. Ms.Steinkopf recalled that during her time living at 47 Lawrence, the Backyard Area contained bushes that formed a part of the backyard of 47 Lawrence.
[44] This open, peaceful, notorious, adverse and exclusive use and occupation of the Backyard Area by the occupants of 47 Lawrence continued throughout the 20 years leading up to the Transfer Date. Each successive resident of 47 Lawrence believed that their property included the entire Backyard Area.
[45] Counsel for Terzian points out that the eavestrough of the 45 Lawrence garage appear to overhang the boundary line between the two properties. There is no evidence, however, that Mr. Aymong ever accessed that eavestrough without seeking permission of the owner/resident of 45 Lawrence at the time.
[46] Following the end of Ms. Steinkopf’s tenancy, Ms. Fedoruk and her spouse listed 47 Lawrence for sale. During this time – from the end of May 1994 until the end of December 1994 – Ms. Fedoruk regularly visited 47 Lawrence and continued to use the entire Disputed Area in the same manner that they had during the years that they lived there.
[47] The very same pattern of use continued after Ms. Fedoruk sold to Mr. McCarthy and Ms. Goulet-McCarthy on January 3, 1995, and after they transferred ownership to Ms. Mandel and Mr. Scott Johns on February 14, 1997. Both successive residents of 47 Lawrence occupied the entire backyard, including the Backyard Area, on an exclusive basis. They replaced the wooden gate separating the driveway from the backyard of 47 Lawrence with a black iron gate, and continued to use the entire Disputed Area much as all those who came before them had done. The evidence shows that Ms Mandel planted and maintained flowers and bushes within the Backyard Area throughout her ownership of 47 Lawrence.
[48] This pattern continued until October 31, 2006, when 47 Lawrence was transferred to Ms. Aquilina. By this time, the Conversion Date had come and the period for which evidence is relevant came to an end. In all, for at least 20 years preceding the Conversion Date, the successive owners and residents of 47 Lawrence used and occupied the Backyard Area visibly, exclusively, openly, continuously, notoriously: see Gray v Guerard, 2013 ONSC 6200, at para 74.
[49] In fact, the 47 Lawrence backyard, including the Backyard Area, was entirely enclosed by fencing. This had the effect of partitioning off the backyard from everyone but the residents of 47 Lawrence. Needless to say, “Enclosure is the strongest possible evidence of adverse possession…”: Cruickshank, supra, para 64, quoting Seddon v Smith (1817), 36 LT 168, 169 (CA).
[50] The criteria for adverse possession of the Backyard Area have been made out.
IV. Disposition
[51] Vivekanandan shall have a Declaration that they have acquired the Backyard Area through adverse possession and have acquired a prescriptive easement over the Driveway Area. The land registrar of the land registry office in Toronto shall be directed to register the judgment of this court and to amend the parcel registers to include the Backyard Area in the fee simple legal description of 47 Lawrence and to show 47 Lawrence as together with an easement over the portion of the Driveway Area north of the grassy island and 45 Lawrence as subject to an easement over that portion of the Driveway Area.
[52] Counsel are invited to provide me with written submissions on costs. I would ask that counsel for Vivekanandan provide me with their submissions (2 pages maximum) and a Bill of Costs within 2 weeks of the date of these reasons for judgment, and that counsel for Terzian provide me with their submissions (also 2 pages maximum) and Bill of Costs within 1 week thereafter. These submissions and Bills of Costs may be emailed directly to my assistant.
Morgan J.
Released: June 27, 2018
SCHEDULE “A”
SCHEDULE “B”
SCHEDULE “D”
COURT FILE NOs.: CV-15-538471 and CV-16-547696
DATE: 20180627
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TALYN TERZIAN
Applicant
– and –
NIRANJAN VIVEKANANDAN and SARA AZARGIVE
Respondents
AND BETWEEN:
NIRANJAN VIVEKANANDAN and SARA AZARGIVE
Applicants
– and –
TALYN TERZIAN and KEVIN GILMOUR
Respondents
REASONS FOR JUDGMENT
E.M. MORGAN, J.
Released: June 27, 2018