Wednesday, April 21, 2010

A word on driveways

Yesterday's Toronto Star posted a story about a shared driveway. Put briefly, this driveway has been used by both neighbours for...well, at least 33 years...but the new owner of one house did a survey and discovered that the driveway was entirely his property. So he has blocked his neighbour's use of it.

Not a good thing to do. For a few reasons.

The first is simply practical. Litigation is not a good way of getting to know the neighbourhood. Granted, there are times when one's legal rights are more important than 'playing nice' - hence why I have a job - but even if you have a legal entitlement, you need to carefully weigh the consequences of exercising it when you know it will create an adversarial situation with the neighbours.

Secondly, apparently the Toronto Star now covers arguments between neighbours.

But thirdly, and most substantively, is that the aforementioned legal entitlement doesn't necessarily exist.

If you read the comments on the story, you will see a great many remarks about "squatter's rights", "adverse possession", "prescriptive rights", and "Land Titles". Some of the remarks are correct; some not.

In rural Ontario, it is not the least bit uncommon to discover that your driveway is not, in fact, on your land. It's not something your lawyer will necessarily pick up on during the purchase of the property, either, unless a survey is done. The time and expense of surveys, and the improbability of them picking up serious title defects, means that they are seldom done for the purpose of a residential real estate sale.

So here you are, you've been living in your house with your nice yard and 100-meter driveway for a few years, then your neighbour gets a survey done and discovers that, in fact, your driveway is on his land. What happens next? It's his land, right? Which means he gets to say that you can't use it anymore; ain't that so?

Well, maybe not. In property law, there's this thing called an "easement". Put simply, it's a right that somebody else has over a piece of property, usually tied to a neighbouring property. A right-of-way is a common easement. I sever my back yard from the rest of my property and sell it to you, but there's no road access to my back yard, so I also sell you an easement allowing you to travel over my other parcel of property in order to access your property. If I sell the other parcel to someone else, you still own the easement. If you convey your property to a third party, you would usually convey the easement with it. Other easements include the rights of a utility company to run equipment on, over, or under your property.

So an easement is a property interest. The cleanest property interest is always a registered property interest. So if you check the title and it turns out that your neighbour's property is "subject to" an easement allowing use of the driveway, and your title is "together with" that same easement, then you're all set. You have a clean, registered interest to use the driveway, and there isn't much left to fight over.

However, not all interests are registered. Even with the land titles system, we still have "prescriptive interests". This includes adverse possession (known colloquially as "squatter's rights") and a thing called a "prescriptive easement" or "prescriptive right-of-way". (Not exactly synonyms, mind you, but close enough for this purpose.) What that means is that, when a person has openly used a piece of land for a particular period for a long enough period of time, they become entitled to continue that use. So if you can sufficiently trace back the use of the driveway to the owner of your property for long enough (usually 20 or 40 years, depending on circumstances), then you can claim a prescriptive easement, and therefore a legal right to use the driveway.

(The effect of land titles is that prescriptive interests can no longer be formed, but such interests that existed prior to conversion, even if they weren't registered or otherwise acknowledged at the time, will generally survive.)

The unregistered easements can result in very nasty neighbour disputes, and very contentious litigation. The person who thinks he has an unregistered interest wants to continue (and usually does continue) with business as usual; the legal owner (usually a new legal owner) insists that he owns full title to the land, and uses physical measures to block access. The police can end up getting called, and sometimes the dispute can become very unpleasant.

The lesson? Well, firstly, if you're buying a property and you see evidence that somebody else has been making use of it, crossing it, etc., beware.

Secondly, just because you technically own a property won't necessarily give you the right to exercise full control over it. Consult a lawyer before blocking somebody else's historical use of the land.


This Blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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