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Shared driveway disputes

Updated: Jan 31, 2022

Shared driveways or laneways are a common feature in many urban areas, especially in older developments with a high density of residential buildings. Ottawa is no exception.

Often, a larger portion of the driveway lies on one neighbour’s property, leaving the other neighbour with only a narrow strip that is not wide enough for vehicles to pass over without having to drive over the other’s property.

Disputes can be avoided when the scope of obligations and rights are clearly set out in an agreement between property owners and registered on title. Without that, conflict can arise over ownership, use, and the maintenance of the driveway. There may be questions regarding what part of the driveway each side is entitled to use, when, and who might be responsible for maintaining the driveway surface, or removing snow, for example.

If an agreement cannot be negotiated between the adjoining neighbours, a number of legal principles can be engaged to help determine how these claims are to be resolved should the dispute land in court. Possible remedies include the granting of prescriptive easements conferring a right-of-way, or title to a portion of the property by adverse possession. Without any ownership right or right of access, one or both of the neighbours may be left in the position of a trespasser whose entry onto the land in question can be prevented.

Adverse Possession

Adverse possession, commonly known as squatter’s rights, can confer an ownership right to property whose title is held by another. Adverse possession is not easy to establish. A person would have to show that he or she was in actual possession of a piece of land, had the intention to exclude the true owners who were in fact excluded and that such possession had been opened, notorious, peaceful, adverse, exclusive and continuous. Intent to exclude can be inferred when possession occurs under colour of right or by mistake as to the title or boundaries, but where there is implied or express permission to use land by the true owner, possession is not adverse.

Additionally, this continuous period of adverse possession had to have occurred for at least 10 years before the land in question was converted into the Land Titles System which is the system of electronic property registration in place across Ontario. It replaces the old registry system which recorded property interests on paper documents held at individual registry offices throughout the province.

By virtue of section 51 of the Land Titles Act, any rights by adverse possession or from prescriptive easement had to have crystallized by the time land was registered in the Land Title System. Because all of the land in Ottawa has been registered in land titles, instances of viable claims for adverse possession and prescriptive easement will become more uncommon as time goes by. A recent case which confirmed the requirements to establish adverse possession can be found in Lombardo v. 2672140 Inc. (2021, Ont. Superior Court).

Prescriptive easement/doctrine of lost modern grant, and easement by necessity

Easements can give a right to access a shared driveway, including a portion of the neighbour’s property. This is not an ownership right like adverse possession. Nor does it permit the parking of the vehicle on the neighbour’s side of the shared driveway. It is about the right to drive over part of a neighbour’s property to reach another property. A right of way, for example, is a type of easement.

In situations where there is no specific grant of an easement (written agreement between two neighbours), one may be established by virtue of two other legal principles: prescriptive easements under the doctrine of lost modern grant, and easements by necessity.

"Court decisions in these areas of law are highly dependent on the facts of the individual cases, and are sometimes difficult to reconcile. Given the potentially significant consequences to owners of shared driveways, getting appropriate legal advice is highly recommended."

The leading case in Ontario relating to prescriptive easements and the doctrine of lost modern grant (discussed below) remains Henderson v. Volk (1982, Ont. Court of Appeal). Under the doctrine of lost modern grant, which the Court of Appeal acknowledged and affirmed, the claimant must demonstrate use and enjoyment under a claim of right that is continuous, uninterrupted, open and peaceful for a 20 year period prior to the land being converted into the Land Titles System.

The other essential elements required to establish a prescriptive easement are as follows:

- there must be a dominant and servient tenement;

- an easement must accommodate the dominant tenement;

- dominant and servient owners must be different persons; and

- a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant.

Where all of these elements can be established, the law will adopt a legal fiction that a grant of an easement was made despite the absence of any direct evidence that he was in fact made.

Henderson v. Volk has been cited in numerous cases over the years. In the 2013 Court of Appeal case, 1043 Bloor Inc. v. 1714104 Ontario Inc., the court determined that because the owner of a laneway had been asked by a neighbour to use it, the neighbor was not using the laneway at that time under the assumption he had a legal right to do so, and the 20 year period was therefore interrupted.

In the more recent 2020 Court of Appeal case, Vivekanandan v. Terzian, the court confirmed that to estaslish that the easement accommodates the dominant tenement, it must be shown that the easement was reasonably necessary for the better enjoyment of the dominant tenement.

The second type of easement is an easement by necessity. This easement arises when the right is deemed necessary for the reasonable use and enjoyment of land that is created by operation of law and not defeated by the Land Titles Act. The difficulty with obtaining a court order granting this type of easement is that the person claiming it has a very heavy onus to show that it is in fact necessary. The usual cases in which one is granted are those where the homeowner is completely landlocked - whether by foot or vehicle.

Court decisions in these areas of law are highly dependent on the facts of the individual cases, and are sometimes difficult to reconcile. Given the potentially significant consequences to owners of shared driveways, getting appropriate legal advice is highly recommended.

MZS Lawyers are experienced Ottawa property dispute lawyers that can assist with every aspect of your shared driveway dispute.

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