Law Times

Law Times • January 8, 2018 Page 3 www.lawtimesnews.com Right of usage established under common law Litigation waged over dispute on overhanging tree BY SHANNON KARI For Law Times A homeowner who does not object to a neigh- bour regularly access- ing a strip of his or her property should not nor- mally lose any legal rights over that land, an Ontario Superior Court judge has ruled. Justice Paul Perell made the finding in a legal dispute be- tween two neighbours in the Scarborough section of To- ronto over access to a passage- way between their houses and also whether a portion of an overhanging oak tree could be pruned without seeking per- mission. The decision in Carpenter v. Doull-MacDonald is anoth- er example in recent years of a dispute between neighbours that ends up in litigation, a fact that is noted by Perell in his ruling. The "animosity" was "con- sistent with the norms of neigh- bours who are not neighbourly," he wrote in the decision released Dec. 19. Benjamin Kates, a civil liti- gator at Stockwoods LLP in To- ronto, who has acted for clients in a number of boundary dis- putes, says that, even though the issues may seem minor to out- siders, it is not surprising they end up in court. "It is important to remember that we are often dealing with the core asset of the litigants, which is of great importance to them," says Kates. The case before Perell in- volved the owners of homes originally purchased in the late 1940s by two Second World War veterans. Cynthia Doull-MacDonald bought her home in 2015 from the original owner. Carol Car- penter became the registered owner of the house next door, after the death of her father in 2010. The narrow passageway be- tween the two houses is land that is owned by Doull-MacDonald. The court heard that the original owner did not object to Carpenter's father and his family accessing that strip of land over the years, usually just to clean windows or the eaves- troughs. Several months after pur- chasing her home, Doull- MacDonald had a fence erected inside her property line, about 35 centimetres from her neigh- bour's house. In response, Carpenter filed an application in court seeking an order that the fence be taken down on the grounds that her father had obtained a prescrip- tive easement through his past use of the land and that the right had not been extinguished. A legal right of usage over property can be established un- der the common law if there has been more than two decades of access, Perell explained. "The doctrine of lost mod- ern grant establishes that where there has been 20 years of un- interrupted enjoyment of an easement and such enjoyment has all the necessary qualities to fulfill the requirements of the prescription, the law will adopt the legal fiction that such a grant was made," wrote Perell. However, courts should be cautious about finding that a landowner's legal interests have been diminished as a result of being a good neighbour, said Perell. He cited a 2013 decision by the Ontario Court of Appeal in 1043 Bloor Inc. v. 1714104 On- tario Inc., which also involved a dispute over the usage of land between two properties. Perell found that no pre- scriptive easement had been established because the original owner was acting in a "neigh- bourly way" to permit access to his property. "The evidence suggests per- mission to use not acquiescence to taking," the judge wrote. In outlining the various property law issues that must be considered, Kates suggests that Perell ultimately attempted to determine the most reasonable outcome. "The fundamental message of this decision is that courts are not going to penalize you for being a good neighbour," says Kates. Les O'Connor, senior litiga- tion partner at WeirFoulds LLP in Toronto, says that one way to ensure there is no ambiguity for a homeowner is to make it clear that it is only with your permis- sion that the neighbour is being allowed to access the land. "You can't in the face of per- mission turn that into a legal right," says O'Connor. Doull-MacDonald was also permitted to prune the over- hanging branches without seek- ing permission from her neigh- bour, ruled Perell. Both sides retained an arbor- ist to testify and the judge con- cluded that the pruning did not damage the tree. The legal right comes from the common law, notes O'Connor. "It is a nuisance on your property. You didn't ask for the branches to overhang," he says. As long as a tree is not a "boundary tree" under the pro- vincial Forestry Act, you are en- titled to prune branches that are on your property, says Kates. "If it is a boundary tree, that is where it gets tricky. You want to look at your deed and your survey and you want a reputable arborist" to avoid potential legal problems, he explains. Sarah Corman, the lawyer acting for Doull-MacDonald, and Robert Kalanda, the lawyer representing Carpenter, both declined to comment as the case is still in the appeal period. LT NEWS Benjamin Kates says that a recent decision shows that courts are not going to penalize people for being good neighbours. 561-391-3344 f 561-948-4713 d 561-910-7861 Florida Probate and Tax Planning Services STEVEN Z. GARELLEK Florida Bar Board Certified in International Law Member of the Florida, Ontario, and New York Bar 200 East Palmetto Park Road, Suite 103, Boca Raton, FL 33432 ntitled-2 1 2017-09-13 1:45 PM Get up to speed. Get down to business. With Practical Law Canada's expertly written and continually maintained resources, you get time-saving legal know-how that lets you respond faster to client requests, quickly familiarize yourself with new practice areas, and stay on top of key changes in the law, thomsonreuters.ca/practicallaw © 2017 Thomson Reuters Canada 00249IL-90416-NP The fearless confidence that only comes from trusted answers. Untitled-1 1 2018-01-03 10:05 AM www.twitter.com/lawtimes Follow on

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