Law Times

Law Times • augusT 20, 2018 Page 9 www.lawtimesnews.com Neighbours can come to agreement without court Litigation wages over space between properties BY SHANNON KARI For Law Times S ome of the relevant case law may date back to the mid 19 th century or earli- er, but even in 2018, there appear to be judicial disagree- ments about how to apply the legal tests when it comes to liti- gation between neighbours over whether a prescriptive easement has been established on a space between their properties. The Ontario Court of Ap- peal has issued rulings in at least three cases this summer on these issues and, in two of the judg- ments, set aside the conclusions of the application judge. In municipalities with older housing stock, disputes still arise that pre-date the land titles reg- istry and require searching for evidence from decades ago as to whether a shared use of property was expressly by permission or acquiescence. The threshold that must be met was set out again by the Court of Appeal last month in a dispute over a four-metre- wide strip of land on a "shared driveway" between two residen- tial homes in Ottawa that were originally constructed at least 90 years ago. "Despite the conf lict between the current owners, their legal rights fall to be determined large- ly by the conduct of their prede- cessors in title, in more peaceful times," wrote Justice Gary Trot- ter in English v. Perras. The Court of Appeal found that Superior Court Justice Sally Gomery erred in finding a pre- scriptive easement and ordering one of the couples to remove a fence erected just inside their property line. "The courts have insisted on a high standard for establishing a prescriptive easement by lost modern grant," wrote Trotter, with justices Alexandra Hoy and David Brown concurring. "In this case, the evidence did not establish anything more than permissive use during the prescriptive period," wrote Trot- ter. The Court of Appeal stated that it was not endorsing the "ag- gressive conduct" of the Perrases in erecting the fence. However, for the neighbours to meet the requirements of establishing a prescriptive easement, they needed to prove 20 years of "un- interrupted and unchallenged use" before the properties were registered into land titles, which was 1996. Roxie Graystone, who acted for the Perrases in their success- ful appeal, says the decision pro- vides "some clarity" in this area of the law and for other neigh- bours engaged in shared prop- erty disputes. "It explains what type of evi- dence you need" when seeking to establish this right, says Gray- stone, a lawyer at Merovitz Pote- chin LLP in Ottawa. "You might need to find evi- dence from 20, 30 or 40 years ago. There has to be a clear as- sertion of a right to use it like you owned it and the other folks know it," adds Graystone. The decision in English is a reminder by the Court of Ap- peal that an applicant's evidence must be very solid to establish a prescriptive easement, says Douglas Stewart, a partner at Dentons in its Toronto office. "It is not showing any le- nience toward the evidence. If the servient tenement can cre- ate an ambiguity, the court will likely decide in its favour. The equities do not seem to come into play. Justice Trotter makes it clear he did not like what the [Perrases] did, but [he] found that the application judge did not follow key points of law," says Stewart, who is part of the firm's litigation and dispute resolution group. David Thompson, a part- ner at Scarfone Hawkins LLP in Hamilton, says these types of cases can be very difficult to meet the threshold in terms of the requirement to show that a neighbour acquiesced to the use of the land instead of granting permission. "If you say nothing, it is ac- quiescence. But most of us think of silence as a granting of permission," says Thompson, a commercial and civil litigator at the firm. The Court of Appeal, in its decision in English, stated there can be a "fine line" between the two concepts. "There must be clear and un- ambiguous evidence that the use of the land was as of right and not by permission. If the evi- dence is equally consistent with both uses, a claim based on lost modern grant must fail," wrote Trotter. Establishing these claims often requires searching for the predecessors in title, notes Thompson. "You try to track them down. You may also be looking at old surveys and grainy images," he says. These types of disputes continue to be litigated, espe- cially in municipalities with older housing stock, because of "generational turnover," says Thompson. "You get younger people who buy a property and want to do renovations. There is not a his- tory of getting along with your neighbour," he observes. Another recent decision of the Court of Appeal found that the application judge was wrong to grant an easement over only the rear strip of land between two properties in a small community in southwestern Ontario. The court, in its decision in Hunsinger v. Carter, conclud- ed that a prescriptive easement had been clearly established on a gravel driveway that had been used by a family for more than 40 years. A couple that purchased the neighbouring property in 2017 built a fence as part of plans to establish a daycare business. The fence made it very dif- ficult for its neighbours to drive vehicles to the back section of the strip of land. Superior Court Justice James Ramsay "erred" in applying the legal test as to when an obstruc- tion of an easement or right of way will be permitted, said the Court of Appeal ruling. "Where an easement has been found to exist, an adjoin- ing owner will be entitled to encroach on it unless that en- croachment amounts to sub- stantial interference with the use of the easement," wrote Justice Kathryn Feldman with justices David Brown and Wil- liam Hourigan concurring. One of the authorities cited by the Court of Appeal in finding that an easement had been es- tablished over the whole strip of land was an 1860 decision is- sued in Britain. Edward McCarthy, who act- ed for the successful appellants, says the fence did amount to substantial interference with his client's right to use that prop- erty. "The judge pulled a Solomon on me" in granting an easement over only part of the driveway, notes McCarthy, a lawyer at Mc- Carthy & Fowler in Hagersville, Ont. In all of these cases, another and less costly option is for neighbours to come to an agree- ment without going to court. "We try to get them to be ra- tional," says Thompson. "But our property rights are so ingrained in us. People become incredibly emotional when it comes to the protection of their homes," he adds. LT FOCUS Roxie Graystone says a recent Court of Appeal decision provides 'some clarity' in this area of the law and for other neigh- bours engaged in shared property disputes. LawTimesNews.com Fresh Ontario legal news and analysis available on any device. Get More Online Untitled-3 1 2018-07-17 3:00 PM

• Cover