Your Land Is My Land - Part I - Prescriptive Easments

  

Breface:

The general rule is that the land you own is yours to do with as you wish and to exclude others from using it. That is an oversimplification of course as there are multiple restrictions on such desired uses from many sources. An example is the Planning Act which prevents subdivision of land without approval.

This post though is not about legislative or governmental restrictions in Ontario. It is about common law encroachments through use by another. You have no doubt heard about "squatters rights" or the saying that "possession is 9/10ths of the law. This is the common law concept of "adverse possession" or the risk of losing the title to your land through the open and continuous use of it by another. This will be dealt with in a separate post. A second possibility is the concept of prescriptive easements which is the ability of another person or persons to gain the right to use some or all of your land for specified purposes through past continuous use for that purpose. This is the focus of this posting. A prescriptive easement can be found based on either the s. 31 of the Real Property Limitations Act, through the doctrine of lost modern grant, or at common law.

What Is Required To Establish a Prescriptive Easement?

The Ontario Court of Appeal (ONCA) has recently released two decisions on prescriptive easements being English v Perras, and, Hunsinger v. Carter. These two recent cases set out what must be proven by the person(s) claiming the right to use your land which is as follows:

1. That the claimant(s) enjoy the benefit of the use of your land whether it be it for access, light, support or other purposes;
2. That the two pieces of property in issue (theirs and yours) are owned by separate persons;
3. That the use made of your land must be reasonably necessary for the "enjoyment" of the claimants land;
4. That the use made of your land must have been continuous, open and peaceful for a set period of time. Under the Real Property Limitations Act, the period is forty (40) years immediately before the claim is brought to court. Under the doctrine of lost modern grant, the period is any twenty (20) years of the use at issue. At common law, the set period is from time immemorial or the year 1189. Practically speaking this is meaningless in Canada;
5. That the entire period of use made by the claimant(s) must also have been without your permission. The permission to needed to defeat a prescriptive easement can be oral or written under the doctrine of lost modern grant but must be in writing to defeat a claim under the Real Property Limitations Act.

If and when a prescriptive easement is established the claimant(s) land would then be known as the dominant tenement and your land as the servient tenement.

Impact of the Land Titles System:

The Land Titles system in Ontario abolished all prescriptive easements. Accordingly, the periods of use discussed above in item (4) must have existed before the land was transferred into the land Titles registry.

Evidence Needed:

The claimant(s) must establish all five (5) requirements above through evidence. The evidence can be from witnesses who would describe the use made of your land, when it was made, and possibly whether it was done without your permission. You are entitled to respond to the claimant(s) evidence. You might defend by attacking any of the required elements and the most likely being that it was done with your permission. At the conclusion of the evidence, the judge will decide what the facts are and then apply the law to those facts.

What Uses Are You Permitted Over Such An Easement?

You may also wish to make some use of your land that the claimant says interferes with their prescriptive easement. If a prescriptive easement is not established then you can proceed. If one is established you can still encroach upon the easement unless your use amounts to a substantial interference with the use of the established easement. The test for substantial interference is not one of reasonable necessity but of convenience. Can the dominant tenement still use the easement over your land as conveniently as before?

When an Easement Dispute Arises:

The bad news is that all easement disputes are stressful, time-consuming and expensive. They necessarily occur between neighbours. When such disputes arise it is best to first retain legal advice and thereafter to work out an accommodation if at all possible. 

The good news is that these type of disputes will be thing of the past in the coming years. Firstly the Land Titles system has abolished prescriptive easements. Secondly, as we move forward under the new Registration system the ability to prove such easements becomes more remote, if not impossible.


Information made available on Gestalt Legal in any form is for information purposes only. It is not, and should not, be taken as legal advice. You should not rely on, or take, or fail to take, any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Every legal problem is fact and jurisdiction-specific and should be discussed with your legal or paralegal advisor as soon as possible. If you cannot afford such advice various free legal clinics exist assuming you qualify financially.