February 4th - 2010

LEGAL BEAT: Open use of driveway for 20 years supports easement

Welton owned two lots and sold one. He then built a driveway that both lots could use. The driveway is located on the lot that he sold. He has continued to service and maintain the driveway since 1963. A dispute arose between Welton and the new owners of that lot who had bought it in 1985.

Welton owned two lots and sold one. He then built a driveway that both lots could use. The driveway is located on the lot that he sold. He has continued to service and maintain the driveway since 1963. A dispute arose between Welton and the new owners of that lot who had bought it in 1985.

The judge agreed that Welton had obtained an easement over the lot for the driveway and that this was by adverse possession and not by permission of the owners of that lot. The Court of Appeal summarized the legal principles as follows: "It is well established law that to acquire an easement by prescription, a claimant must show that he or she has enjoyed an easement without violence, secrecy or permission for a period of at least 20 years prior to the commencement of the action for a declaration. In other words, the claimant must demonstrate a use and enjoyment of the easement, for the 20 year period, under a claim of right which is continuous, uninterrupted, open, peaceful, and with the knowledge and absence of objection from the owner of the servient lands." "After setting out the applicable legal principles, the trial judge explained why he was satisfied that Mr. Welton had met that burden. In respect of the requirement that use be "as of right", the trial judge states: The defendants have no basis to say use was by "license" or permission. The use was obvious to all the owners of Lot 29, as to who provided the maintenance and who supplied materials for such maintenance. Mr. Welton's evidence is not only convincing but it is frank and truthful. He alone knew of the arrangement with Mr. Tickins and subsequent owners up to the arrival of the defendants. His efforts in maintaining such are evident from the photographs."

Welton v Glickman 2008 ONCA 591

MERV'S COMMENTS
Many lawyers advise clients not to become involved in fence or easement disputes such as this. The legal costs can be prohibitive. The law may be clear enough to state, but it is the facts that may become determinative. In this case Welton was convincing that his use of the property was not by license or permission. When clients tell me that a neighbour is asking permission to use their property my advice is to be generous and allow them to do so. However we then write a registered letter that they are doing so with the client's permission which can be withdrawn at any time. OR chain the entrance every few years to stop the time accumulation.

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