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. 


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