September 7th - 2006

LEGALBEAT Claim to right of way denied

An owner had two homes and three carports and one driveway on one lot and received approval to sever them into two lots. One of the conditions of that approval was that the centre carport be removed.

An owner had two homes and three carports and one driveway on one lot and received approval to sever them into two lots. One of the conditions of that approval was that the centre carport be removed.

The owner did that and then built a second driveway for the second home and both homes were sold. The second buyer saw what she was getting and no references were made in any documents about any easement or right-of-way over the neighbour's property. After closing, the neighbours allowed her to use their driveway but that permission was terminated a few years later. The buyer then sued her neighbours claiming an easement for ingress and egress.

Then she added the original seller, the seller's agent and brokerage and her own agent and brokerage claiming damages for negligently representing to her at the time of her purchase that she was entitled to an easement or right-of-way over the neighbouring property. The judge found that there was simply no evidence that anyone had misrepresented the situation to her in any way. The seller and REALTORS® won.

Lynch v Champagne 2005 CANLII 12857 (ONSC)

MERV'S COMMENTS
That lawsuit claim against the seller and REALTORS® was 10 years after her deal was closed! She had a lawyer and no mention of an easement had ever been made in any documentation. The judge was generous in not throwing out her claim based on the Limitations Act. Rather than deciding it on that legal basis he decided it on the evidence that there was no misrepresentation.

Thankfully, the REALTORS® were able to substantiate their positions with copies of the MLS® listings, the offers, photographs and their clear recollections.

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