Monday, May 18, 2015

Access Easements: What to Do if you get Walled In to (or Out of) Your Property

As a real property dispute resolution lawyer, I'm often consulted by folks who own property either subject to an easement or in whose favour an easement does or should exist. An easement is generally a right to do something concerning a piece of land, that's short of a right to possess the land. 

An easement is usually set up to benefit an adjoining piece of land, and will "run with the land" to successors in title. Perhaps the most common form of easement is a right to traverse land in order to access adjacent land. Access easements are especially common in cottage situations, where water, rocks, woods and remoteness may make other road access difficult. 

Sometimes a woodlot owner or farmer will sever small waterfront vacation lots off a larger lot, keeping the back woods or fields for his own harvesting use. The key to making this arrangement work is often the construction by the lot vendor of a common shared road from a public highway through the remaining woods or fields, to connect up with the cottages. What's supposed to happen from a legal perspective is that each of the cottage lots has an access easement registered in its favour against the parcel of land that the access road crosses. 

Problems can arise when those easements don't get formally registered on title, or when a new owner buys the larger parcel and fails to maintain or attempts to block the access through it. Problems can also arise if all of the cottage lot owners are supposed to jointly contribute to the upkeep of the access road, and one or more of them repeatedly refuses to pay. 

A court application might be necessary to establish and enforce access rights. A court action could also be required to collect the maintenance debt for the non-payors. 

In Ontario, access "applications" go before the Superior Court of Justice, and a full blown "action" (which can involve drawn out discoveries and considerable expense) may not be necessary as the Rules of Civil Procedure permit a much simpler "application" to determine questions of rights in land. For non-payment of maintenance costs, an action is necessary (as it involves the collection of a money debt), but it could proceed before the relatively inexpensive Small Claims Court so long as the claim doesn't exceed $25,000 in value. 

While an access easement clearly registered on title is the clearest of rights since all the public has notice of it, the holder of such a right still might wind up in court seeking an injunction to prevent blocking of the access if someone further up the access road decides to erect a locked gate or plants trees in the middle of the road. However, you shouldn't be deterred even if you don't have an easement registered in your property's favour if you and others acquired the property believing there was an access easement, and in fact have been regularly using such a road/driveway/trail/path for access since you purchased it. 

An "easement by implication" can be established in court if you can present evidence that you purchased your property thinking you had an access easement because the access road that's now in dispute in the obvious (and perhaps sole) way of accessing your property, and it's clear the original purchaser (and vendor) likely believed the same thing. These easements by implication don't require that you establish adverse possession over a period of many decades. And they don't even require absolute "necessity" - meaning no other way of accessing your property - since with waterfront property it might be possible for your opponent to claim that you're able to access the property from the water by boating into it. 

If a court does find that you've got an easement by implication, you should be able to register it in your local land registry office, thus hopefully avoiding future doubts over its existence by subsequent purchasers of your property or the property over which the easement passes. 

Monday, May 11, 2015


Now that tax season is over, and I made it through to the end of my Canadian Taxes A to Z series of posts, I offer you something from another line of law practice that I engage in: criminal defence. I've spent of lot of my legal career first prosecuting and then defending drug offences. Along a the way I've written a few books touching on how they should be investigated, and also witnessed the defences that stand the best chance of success in leading to an acquittal.

Here are the first two of my top five list of drug trial defences that work (the other three will follow in future posts):  

1. The drugs aren't mine. In order to convict you of drug possession or possession for the purpose of trafficking, the court needs to be convinced beyond a reasonable doubt that you had legal possession of the drugs in question. Generally, that requires "knowledge" and "control."

Meaning, that if you truly didn't know the drugs were where the police found them, and such knowledge can't reasonably be inferred from the surrounding circumstances, then the court must acquit you. Likewise, even if you knew about the drugs but had no control whatsoever over the location in which they were found, the court must again acquit you.

For this defence to work, your claim that the drugs don't belong to you must be reasonable, and must completely negate knowledge and control. Meaning, the "I was just holding them for a friend" story doesn't cut it, because you'd would still have knowledge and control ("ownership" isn't a required element here). Likewise, the defence will fail if you admit to smoking a joint as a passenger in a vehicle, since you clearly had some knowledge and control. 

Where it works best is if: 
  • the drugs are found in a vehicle that isn't registered to you, and you aren't driving, or can reasonably say you just borrowed the vehicle from a friend;
  • the drugs are found in clothing that doesn't belong to you (but you happen to be wearing), and you can again reasonably say you just borrowed that clothing from a friend; 
  • the drugs are found in a bag that doesn't belong to you, and you have a reasonable explanation for why you have no knowledge of its contents but are are nonetheless holding it;
  •  the drugs are found in a residence where you have no access to the part of the residence where the drugs are located.

Anyone hoping to make "the drugs aren't mine" claim work as a defence will probably need to testify in their own defence. In order to be believed, it will help if you don't have a criminal record. 

I've seen the defence work best in front of juries in the international airport importing context, where for example an accused with no criminal record and good background gave heartfelt honest sounding testimony that she really didn't know how something like a kilo of cocaine wound up in her luggage. 

2. The Police Needed a Warrant to Search

Because drug offences are largely "victimless" crimes, meaning there's usually no one in whose interests it is to report them to the police, authorities rely heavily on intrusive investigative techniques to discover these offences. These intrusive techniques are also needed to obtain samples of the alleged "drugs" in order to test that they aren't in fact drywall compound or icing sugar. 

While warrants and privacy interests existed prior to 1982, the adoption and constitutional entrenchment in 1982 of s. 8 of the Canadian Charter of Rights and Freedoms (the protection against unreasonable search and seizure), combined with s. 24 of the Charter (authorizing a court to exclude evidence obtained in violation of the Charter) placed a new emphasis of the protection of privacy interests of Canadians against state intrusion. The most fundamental way to protect privacy is to require the state to obtain a warrant from an independent judicial official prior to conducting a search. 

Like a lot of legal things, when a warrant is and isn't required is not black and white, but rather occupies a realm of shades of grey. However, there is a clear pecking order of privacy interests where the greater the privacy, the more likely a warrant will be needed. In any situation where drugs are discovered through a search leading to criminal charges, it's possible to argue as part of a pre-trial Charter motion that a warrant should have been obtained prior to conducting the search, and that therefore the drugs should be excluded from evidence at trial. The usual consequence of no drugs in evidence will be a collapse of the prosecution's case. 

The most common situations of drugs being discovered through a police search are: (1) in a vehicle; (2) on a person or in something a person is carrying; (3) in a building. A warrant might be required to search any of those places. 

Warrant needed for a vehicle
For vehicles, police often claim that their search is "incident to arrest" and therefore a warrant isn't needed. But the law limits the scope of such searches to only relate to the reasons for the arrest. Thus police can't conduct a traffic stop, issue a speeding ticket for which no arrest would occur, and then poke around in a vehicle on a fishing expedition looking for drugs. 

Police will often claim a vehicle is being searched pursuant to "consent" from the occupant. While I completely understand the psychological pressure you might be under to say yes to the police question "do you mind if I take a peek in your trunk," just say no. Either they have authority, or they don't. Saying yes won't earn you any brownie points. 

Warrant needed for a person 
Searches of persons or the things they're carrying are also often justified under the "incident to arrest" banner. They key here to legality is there must be a valid arrest to start with. If not, a warrant may be required to search things being carried, like a gym bag. Usually one wouldn't obtain a warrant to search a person's clothing, but personal searches involving bodily integrity (like taking blood samples or x-rays) would almost always require a warrant.

Warrant needed for a building
Other than the human body, buildings or portions of buildings which the public usually don't have any access to tend to have the highest expectation of privacy. This is particularly so with residences. Even if the police are already in a building for another legitimate purpose, they can't just go poking around looking for evidence - they need to get a warrant. In extreme situations, they should be "freezing" the scene and getting a warrant, rather than later claiming exigent circumstances didn't permit obtaining a warrant. 

So arguing that a warrant was needed to search wherever drugs or related evidence was located remains a key part of any strong drug charge defence. You should consult a lawyer with experience in search warrants to obtain advice about whether such a defence could work for you.