Unregistered Easement Confirmed to be in Existence
The Ontario Court of Appeal just confirmed the existence of an unregistered easement in Hunsinger v. Carter on 20 July 2018.
The two properties were side by side and Hunsinger used land out by the boundary to access the rear of his property. This appears to be a mutual driveway which arose through convenience. It wasn’t purchased, no money was ever exchanged and it also appears that no permission or objection was ever noted. It just happened over time.
So, at what point does it become a legal right as opposed to trespassing?
Basically, 20 years of continuous use, which is open, undisputed and uninterrupted while the property is registered in the Registry system! Then, you have the easement. And, no encroachments would be permitted on the easement, if those encroachments would substantially and practically interfere with the easement rights which should be exercised as conveniently as previously.
The following is a brief outline of the facts:
- Hunsinger’s family operated a plumbing business on the property since 1948
- The Carters purchased their property in 2017 for residential use. They intend to operate a daycare there.
- There is a gravel driveway between the two properties.
- The Carters own a strip of the gravel driveway running lengthwise that varies in width from 8.5 feet to 11 feet.
- The Carters proposed to erect a fence along the boundary of their property in the middle of the gravel driveway.
- The purpose of the fence is for the safety of the children at the daycare.
- The gravel driveway has been used and maintained by Hunsinger and his family since at least 1965, to access the rear of the property, for storage and parking.
- Delivery trucks, and Hunsinger’s vehicles, regularly use the driveway for ingress and egress.
- The Hunsinger parks his two large commercial trucks at the rear of his property.
- Hunsinger outined the difficulties he, his suppliers and customers, and his tenant would face if their vehicles were required to manoeuver around vehicles parked on the Carters’ side of the strip or if it was otherwise blocked.
- Carters asserted that Hunsinger and others needing to access the rear of his property were able to manoeuver their trucks and other vehicles on Hunsinger’s own portion of the driveway and that using the entire strip was not necessary.
- Carters’ predecessors never disputed Hunsinger’s right to use the strip.
- Carters used the driveway themselves in order to access the rear of their property.
Establishment of an easement by prescription
An easement by prescription can arise either under:
1) s. 31 of the Real Property Limitations Act, or
2) pursuant to the doctrine of lost modern grant.
Both have the same four requirements, which were properly recognized by the application judge:
i) a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land;
ii) the properties cannot be owned by the same person;
iii) the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and
iv) there must be 20 or 40 years’ (see: Kaminskas v. Storm, 2009 ONCA 318, 95 O.R. (3d) 387, continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner. See: Henderson et al. v. Volk et al. (1982), 35 O.R. (2d) 379 (C.A.).
After a property has been registered under the Land Titles system, a preexisting prescriptive easement over the land can be established if the four criteria can be proved to have been met before the land was transferred into Land Titles: Carpenter v. Doull-MacDonald, 2017 ONSC 7560.
Ability to encroach
The Court addressed this issue as follows:
 Where an easement has been found to exist, an adjoining owner will be entitled to encroach on it unless that encroachment amounts to substantial interference with the use of the easement.
In Gale on Easements…..
Where the obstruction of a private way was alleged … the question was whether practically and substantially the right of way could be exercised as conveniently as before.
 In Weidelich, Doherty J.A. discussed how that test should be applied in the context of a right of way granted in a deed…. “the dominant owner is entitled to every reasonable use of the right-of-way for its granted purpose.”
In short, the test … is one of convenience and not necessity or reasonable necessity.
Provided that what the grantee is insisting on is not unreasonable, the question is: can the right of way be substantially and practically exercised as conveniently as before?
The Court analysed the case as follows (italics mine):
 The evidence before the court clearly showed a prescriptive easement through over 40 years’ use by Hunsinger and his family of the entire strip of gravel driveway from front to back.
 The question then became whether a fence running lengthwise on either all of the strip or down the front portion of the strip would practically interfere with the appellant’s use of the right of way to the extent that he would not be able to use it as conveniently as before.
Framing the question in that way, the answer is clear on the finding by the application judge that it would be possible to drive trucks there, but only with great difficulty.
 The uncontradicted evidence was that large trucks have accessed the back of the appellant’s property regularly over the entire time the appellant and his family have operated their business.
The motion judge inferred that the trucks did not need to drive over the portion of the strip at the front half of the driveway but could stick to Hunsinger’s side of the driveway until they got to the back half.
Although this may be possible, it is clearly not as convenient as having access to the full driveway. One need only consider a large truck backing into the driveway, not straight backwards as before over the whole driveway, but now having to stick to the appellant’s side at the front, then making a turn onto the entire strip at the back end.
This is the conclusion:
 In our view, the appeal must be allowed, and the easement granted over the entire strip, with an order that the Carters be enjoined from obstructing the easement with the proposed fence or otherwise in a way that would similarly interfere with its established use.
 Costs of the appeal to the appellant in the amount of $10,000 inclusive of disbursements and HST. The motion judge ordered no costs on the basis that success was divided. As the result has now changed, the appellant is entitled to its costs of the motion in the amount of $12,000 inclusive of disbursements and HST.
There are a few matters of note with respect to prescriptive easements:
1) here, there was over 40 years of evidence.
2) there are two ways to establish the easement.
- a dominant tenement that enjoys the benefit of the easement and a servient tenement whose owner suffers some use of its land;
- properties cannot be owned by the same person;
- the benefit of the easement must be reasonably necessary for the enjoyment of the dominant tenement; and
- there must be 20 or 40 years’ continuous, uninterrupted, open, and peaceful use enjoyed without obtaining the permission of the servient tenement owner.
3) Encroachments upon easements are permitted if they allow the right of way to be substantially and practically exercised as conveniently as before.
4) Encroachments would not be permitted if they do not meet the above test.
5) Prescriptive easements are not permitted in Land Titles unless it can be proven that they already existed while the property was registered in the Registry system.
6) This opposition cost the Carters $22,000.00, which is not an inexpensive undertaking, plus their own legal fees and disbursements which they paid, which might have been double that (it usually is), so that would be close to $70,000.00.
7) Always best to know the rules before undertaking litigation.
Brian Madigan LL.B., Broker