Prescriptive easements will only be awarded in the clearest of circumstances and not to the detriment of neighbourly conduct.

The doctrine of lost modern grant (the “Doctrine”) is the last bastion of rights based on prescriptive easements. Its use was reined in significantly when the province of Ontario adopted the Land Titles System.

A recent Court of Appeal decision in 1043 Bloor Inc. v. 1714104 Ontario Inc.1 looked at the continued existence of the limited right to prescriptive easements. In this case, the Court of Appeal unanimously upheld the lower court’s decision and refused to grant a right of prescriptive easement.  In the process, the Court evoked policy considerations that support a high threshold for finding a prescriptive easement.

Facts

The parties own neighbouring properties in Toronto (“1045 Bloor” and “1043 Bloor”) that are separated by a narrow laneway located almost entirely on 1045 Bloor. At least since 1980, the owners of both properties used the laneway to access the parking area behind their respective buildings.

In 1987, 1043 Bloor was sold to Mr. V, the appellant’s predecessor. Mr. V attempted to have his neighbour, Mr. S, the respondent’s predecessor and owner of 1045 Bloor, sign a right of way agreement over the laneway. Mr. S refused (these events were referred to in the Court of Appeal’s decision as the “1987 Incident”).  Following the 1987 Incident, Mr. V and his tenants continued to use the lane.

In 1989, Mr. S’ son placed “private driveway" signs next to the laneway to protest its use by Mr. V, since the volume of cars using the laneway obstructed Mr. S’ use.

Upon selling 1043 Bloor in 2008 to the appellant, Mr. V delivered a sworn statutory declaration stating that he and his predecessor had used the lane continuously and without interruption from 1980 to 2003 (when the property was con-verted to the Land Titles System). In response to the respondent’s plans to develop its building to the lot line, the appellant sought a declaration that it had a prescriptive easement and right of way over the laneway.  The relief sought in the application was based on the appellant’s pre-decessor’s assertion that he (directly and through the original owner) had enjoyed continuous and uninterrupted use for over 20 years2.

The Application Judge dismissed the claim, finding that the claimant did not meet the legal requirements for a prescriptive easement. The Application Judge determined that the 1987 Incident had interrupted the prescriptive period required for an easement.

Doctrine of Lost Modern Grant

The Doctrine is the sole basis for granting prescriptive easements. The test for a successful prescriptive easement was enunciated in Henderson v. Volk:

  • [T]he claimant must demonstrate a use and enjoyment of the right-of-way under a claim of right which is continuous, uninterrupted, open and peaceful for a period of 20 years[.]3

The use required to establish a prescriptive easement must be “as of right” or “under a claim of right”. For use to be as of right, it must meet three requirements. It must be (1) without violence or force — violence is broadly defined and may simply amount to protest by the dominant owner4;  (2) without secrecy; and (3) without permission.

The claimant’s enjoyment must be as if it had a right to the easement.  This would be equivalent to the claimant having obtained a legal grant to the easement from the owner.  Uninterrupted use with permission from the owner will not amount to a prescriptive easement.

A claim for a prescriptive easement will be defeated if at any time during the 20-year period there is an acknowledgement by the dominant owner that the use is not as of right.  This appeal turned on whether such an acknowledgment was ever given by the owner of 1045 Bloor, and whether a single act could interrupt the prescriptive period.

Different Reasons, Same Result

The Court of Appeal agreed with the Application Judge’s decision. Gillese J.A. and Laskin J.A. arrived at the same conclusion but disagreed on the significance of the 1987 Incident and whether it in fact interrupted the prescriptive period for an easement.

Gillese J.A.'s view

Gillese J.A. viewed the 1987 Incident as an acknowledgement by Mr. V that his enjoyment of the lane was not as of right. Mr. V’s attempt to have his neighbour sign a right of way agreement was inconsistent with an entitlement to use the laneway.

According to Gillese J.A., the act of seeking Mr. S’ per-mission in 1987 was fatal to the applicant’s claim for pre-scriptive easement because it amounted to an acknowledgement by Mr. V that his use was not as of right and that any future use would be at the discretion of the true owner.

Macpherson J.A. agreed with Gillese J.A. but also concurred with Laskin J.A.’s view that the use was not “without “violence or force” which also interrupted the prescriptive easement, as discussed below.

Laskin J.A.'s view

According to Laskin J.A., the 1987 incident did not interrupt the prescriptive period. Mr. V undeniably sought permission to use the laneway by requesting that Mr. S sign the right of way agreement. How-ever, the refusal of Mr. S to sign only established that Mr. V’s later use of the laneway was without consent. Mr. V’s acknowledgment that Mr. S had title to the laneway was irrelevant to the question of whether his use was as of right.

Mr. V’s claim was based on his uninterrupted use of the laneway and Mr. S’s acquiescence to that usage. It was Mr. S’ later conduct — posting “private driveway” signs — which defeated Mr. V’s claim for prescriptive easement. Mr. S was a non-confrontational man and the posting of the signs amounted to an overt act of protest to the use of the lane by Mr. V. This went against the broad requirement for prescriptive easements that the use be without violence.

Encouraging Neighbourly Conduct

This decision raises important policy considerations with respect to the limited availability of prescriptive easements in Ontario. In a general sense, where there is ambiguity on the validity of an easement, policy should discourage antithetical behaviour. Neighbourliness should not be discouraged and invoking the Doctrine should not go towards punishing the kind and rewarding the aggressor.

Gillese J.A. and Laskin J.A. both agreed that prescriptive easements should not be awarded carelessly, since they burden the true owners’ land without providing any compensation. A black letter law application of the Doctrine would create perverse incentives.

Laskin J.A. did not agree with Gillese J.A. on the significance of seeking permission from the true owner. In his reasons, Laskin J.A. believed that this view would promote undesirable behaviour and discourage amicable resolutions (i.e. Mr. V seeking an agreement from Mr. S which Laskin J.A. thought should be encouraged). The law should not discourage neighbours from approaching one another about potentially litigious issues.

While the Court of Appeal settled that the Doctrine should be used sparingly, Laskin J.A. was less unilateral in his condemnation of the dominant owner.  Despite the heavy burden placed on a true owner’s property interest, courts ought reasonably to protect the dominant owner’s interest where the use was open, uninterrupted and acquiesced to by the title holder.

Significance

The Court of Appeal made it clear that the Doctrine should only by invoked in the clearest of circumstances. Where there is ambiguity, the law should not punish neighbourly conduct.

The policy concerns evoked by both judges suggest that courts will avoid applying the doctrine when it would punish a considerate and thoughtful neighbour. However, the dominant user’s reliance interest should carry weight when it has been open, uninterrupted and acquiesced to by the true owner.  Great care should be taken by dominant owners not to take an steps that could be construed as an act that interrupts the prescriptive easement period.