November 9th - 2016

Legal Beat: Easement dispute prompts court cases

Access to a waterfront property became a point of dispute in this case. The issue hinged on whether the property required an easement of necessity.

Legal Beat

Access to a waterfront property became a point of dispute in this case. The issue hinged on whether the property required an easement of necessity.

Legal Beat by Merv Burgard, Q.C.

This case focuses on access to waterfront property and the legal concept of an easement of necessity.

An older couple owned a large parcel of land on a lake in rural Ontario. The property initially housed an inn and sports club, along with the couple’s home. The couple later decided to sever the residential section and give a large piece of the home lot to their daughter and son-in-law.

When the severance was created, the older couple were, in legal terms, the grantors, while the next generation were the grantees. At the time of severance, the older couple did not reserve a right of way/easement to the local road, because they preferred to access the home property through the inn land. After the husband died, his wife continued to operate the inn with her daughter, but financial difficulties ensued and the inn land (Part 1) was later purchased by a company under a Power of Sale.

The home property (Part 2) also became a financial challenge for the remaining owners, who were in default in two mortgages. Both lenders wanted to sell the home lot. However, that Part 2 property lacked access to the roadway, although it had waterfront access and could be reached by boat.

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The bank (one of the lenders) brought proceedings to obtain an easement over abutting lands. The bank argued that the logistics of accessing the land required an easement of necessity – a legal term for a right of way given to a grantee (someone who is given land with no access except over other lands owned by the grantor). An easement of necessity can occur when a land owner splits his property so that one of the remaining parcels is landlocked, except by access across the other parcel.

The bank argued that the waterfront access was difficult and inconvenient. The trial judge agreed with the bank, based on a surveyor’s opinion and the configuration of the land. The judge decided the matter based on a Nova Scotia case that whether that easement was available was a matter of “practical necessity”.

On appeal, the Ontario Court of Appeal disagreed with the trial judge’s position on the basis that the test of the need for such an easement is one of strict necessity. The argument against the bank was that a convenience or practicality is not the same as a necessity. Although water access to the second lot was less convenient and more challenging, that reality does not automatically render land access a necessity.

“There was no evidence that water access was not possible at the time of the grant,” the appeal judge ruled, overturning the trial judge’s decision. At its highest, the evidence established that water access “does not offer a viable, or practical, means of access to and egress from Part 2, as the application judge put it, and this is not sufficient to establish an easement of necessity.” The appeal judge rejected the bank’s argument and denied an easement of necessity.

Toronto Dominion Bank v Wise 2016 ONCA 629 (CanLII)


Mervin Burgard Q.C.

The surveyor reported the presence of a very steep shoreline from the water’s edge to a plateau where it rises steeply to another plateau. “Water access up the very steep slope to the building would be impractical,” the report stated. The house sits on one of the highest points of land on the lake.

Buyers of a property like this one may have to negotiate an easement over abutting lands and/or build an “impractical” and expensive set of stairs from the lake. To access the property, they may have to come by water from public access boat launches.

Showing this property may require some innovative ideas from the buyer’s REALTOR®, such as access to the land by boat or float plane. Real estate professionals may want to suggest sturdy hiking boots for all interested parties.

REALTORS® from other areas outside of rural regions such as this one would be wise to refer their buyers to local REALTORS® who are aware of specific issues of access and related challenges in a given area. And no, this is not something that I made up for my Real Estate Law course.

Merv Burgard, Q.C.
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