February 6th - 2009

LEGAL BEAT: You can’t park on the right of way

Fife lives at # 205 and has used a mutual driveway for more than 20 years. The right of way as registered is 76 feet long and 7 feet wide so that the two neighbours could access the backyard parking areas as long as no additions were built onto the back of the houses.

Fife lives at # 205 and has used a mutual driveway for more than 20 years. The right of way as registered is 76 feet long and 7 feet wide so that the two neighbours could access the backyard parking areas as long as no additions were built onto the back of the houses.

A 1979 survey shows a frame addition at the rear of #205 and that shows that the 76 foot right of way was no longer long enough to allow the owner of #205 to access his backyard parking area without driving over his neighbour's land. Fife tore down that addition and built a larger one in 1985 and he has been using an additional 39 feet for more than 20 years.

In 2005 a builder bought #203 and tore down that house and garage. The new owner told Fife that he would be fencing his backyard down to the upper end of the 76 foot right of way. Part of the fence would effectively prevent Fife from accessing his backyard parking pad. Fife argued several legal grounds that would permit him to continue to use the extended driveway.

The judge noted that if this property had been registered under Ontario's Registry Act rather than the Land Titles Act he would not have a problem. Under the former Act more than 20 years of open and continuous use will generally establish a prescriptive easement. However, under Land Titles no title can be acquired by length of possession or prescription.

Fife v Cohan 2007 CanLII 28324

MERV'S COMMENTS
You also cannot park on a right of way. Since the #203 neighbours have a new garage at the front of their home and no longer need this driveway, the judge said, "I would hope that (they) would give Mr. Fife permission to park on the registered right of way .... it would be the right thing to do."

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