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In Ontario, Do You Have a Right to Your Right of Way?

Does your property have a right of way, such as a driveway, across an adjoining property?  You may be surprised to learn that a number of lawyers and legal commentators believe that for certain properties this right of way will expire 40 years after it was first granted, unless you take positive steps to preserve your interest.  This issue was considered in a recent decision of the Ontario Superior Court of Justice.

Background

Where a property is registered under the Ontario Registry Act, a registered claim or interest against that property expires after 40 years, subject to certain exceptions.  A claim or interest can be preserved by registering a notice in the form set out in the Registry Act (a “Notice of Claim”) before the expiration of the 40 year notice period (and if certain requirements are met, thereafter where the interest is full ownership).
 
The legal descriptions of thousands of properties in Ontario, including Registry Act properties, are expressed as being “together with” and/or “subject to” rights of way and various other forms of easements. These easements can be crucial to the access to, and use and enjoyment of, a property. Most practitioners will check that an easement is properly described, complies with the Planning Act, and contains the basic legal elements required for validity.  But it’s likely that most don’t consider the possible impact of the 40 year period. 

Many properties have the benefit of or are subject to easements originally granted far more than 40 years ago.  Since, at law, easements “flow with the land”, subsequent deeds will usually include the easement in the legal description, and it is common practice among many (likely most) practitioners to simply rely on such descriptions. But is this approach justified?  Or, in the absence of a Notice of Claim, does an easement registered under the Registry Act simply cease to exist 40 years after it was granted?

The Ramsay Decision

The case, 1387881 Ontario Inc. v. Ramsay (“Ramsay”) is a decision of the Ontario Superior Court of Justice dated June 25, 2004. In this case, the applicant was the owner of a Registry Act property (the “Servient Property”) which was subject to certain registered rights of way (the “Easements”) which had been granted in 1941 and 1945, more than 40 years prior to the time in question. The respondents were the owners of several cottage properties that had the benefit of the Easements (the “Dominant Properties”). Each of the respondents had purchased the Dominant Properties within 40 years after the creation of the Easements, and their deeds to the Dominant Properties specifically referred to the Easements. The deed by which the applicant took title to the Servient Property also noted the Easements.  None of the respondents registered a Notice of Claim with respect to the Easements prior to expiry of the 40 year search period.

The owner of the Servient Property argued that the Easements had been extinguished because no Notice of Claim had been filed within the 40 year notice period. The applicants contended that the registration of the deeds of the Dominant Properties constituted notice of the Easements, and since less than 40 years had passed since the registration of the deeds, the Easements had not expired.  The court had to decide whether the references to the Easements in the deeds was enough to keep them alive, or whether the respondents had to take the extra step of registering a Notice of Claim in the prescribed form.

Clark J. of the Superior Court of Justice reviewed the relevant statutory provisions, caselaw and policy objectives underlying the 40 year rule, and concluded that notice of an interest in land can be given by either the registration of an instrument or the registration of a Notice of Claim. Therefore, the registration of the deeds to Dominant Properties and the Servient Property, which all specifically referred to the Easements, constituted notice of the Easements. Accordingly, the Easements had not expired and still affected the Servient Property.

Future Developments

Ramsay should give some comfort to property owners relying on registered easements for access to and use of their lands.  However, an appeal of this decision was heard by the Ontario Court of Appeal in January, 2005. The decision of the Court of Appeal has still not been released. There is a chance that the Court of Appeal may overturn the decision and hold that the only method for protecting an easement or other claim under the Registry Act beyond the 40 year period is by registering a Notice of Claim in the prescribed form. Some commentators have strongly criticized the lower court ruling and have cited caselaw which offers some support for this position. 

If the Court of Appeal overrules the lower court, it opens the door for the owners of lands subject to registered easements created more than 40 years ago to deny the owner of the benefiting land the use granted under that easement.  The easement could also be removed from title by the owner registering a deed of the land to himself, with the easement deleted from the legal description.  Such a result could be catastrophic for the benefiting landowner.  Registration of a Notice of Claim would preserve a registered easement less than 40 years old, but beyond that point a new easement would have to be granted, or the benefiting landowner would have to try to prove that her property has the benefit of an unregistered right of way or other easement or right that she is openly enjoying and using (such an interest is not subject to the 40 year rule, but there has been some debate as to whether this exception can ever apply to a registered easement).

This case has potentially serious consequences and has stirred much academic debate.  This is sure to continue after the Court of Appeal releases its decision.  We’ll keep you updated.

John Payne

April 15, 2005 in Other | Permalink

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Comments

Hi John,

This is very interesting.We own a large farm that my Grandfather originally gave a neighbour ROW to build a cottage on a lake property in the early 1960's on the next ajoining lot. This ROW was merly a extension of his own cottage driveway that is extremely close to the cottage. This driveway is now servicing fourty plus cottages and full time homes with the possibility of more due to a resent application for severances on the next ajoining lot(150 acres).The lot application is trying to get approaval by creating a lot addition(part lot 8&9) across the original consent my Grandfather gave(across lot 7) that first ROW to to entend this right of way two lots away. Needless to say my family have grave conserns regarding the maitenance and long term liability of the half mile roadway across our farm which still uses the road to feed cattle,repair fencing and acess our familys own cottages and full time homes. Any ideas on how to get some control back of this old row?

Posted by: Dave Hoover | Dec 3, 2005 8:55:02 AM

I would think that intent for and the granting of this R-O-W is clearly being abused.

It would be highly unlikely in a litigation that it would withstand for the use of the lands outside of the lands for which the use was granted.

It would be worthy of little investigation.

Regards

Bent

Posted by: Bent | Feb 1, 2007 2:11:29 PM

We built our home approx. 13 years ago. We have just decided to do some landscaping along the back of our property. The people that are behind us have been using a set of clothesline that have been there before they moved in about 25 years ago. These clothelines are on our property. I offered to move them but that was not good enough. Do I have the legal right to remove them?

Posted by: Marc Savage | May 18, 2007 9:14:53 PM

I have a property where the people beside me have had a right of way to use my driveway. We have talked many times of closing the driveway if he could by the property next on the otherside of him. He just purchased that property.

Do I have the legal right now to have this easement or right of way restriction lifted. This owner does not need to use my property to get to his. Thanks,
G

Posted by: Ginny | May 22, 2007 3:01:32 PM

I also have a cottage property where the neighbours have been travelling across our land. It has been over 20 years. I had given him a letter 5 years after I began letting him pass. The letter stated that I will allow him to pass through but I am doing so under permission and I will not give him legal right. When I recently told him that the road is going to be closed due to safety considerations, he denies ever receiving the letter and claims prescriptive rights. The "road" he passes through only exists because it is an easement for the hydro poles and he is able to drive through. The passage-way was not intended to be a road, just an easement for the hydro poles and cables.
I think I will lose this case. I have a copy of the letter that was sent.
There is unopened road allowance that he has access to but no other actual road access to his property. He purchased the property as water access only.
Am I scre***ed, or do I have a chance here. (I do have a lawyer but not sure how familiar he is with this kind of thing)

Posted by: Mickey Stewart | Dec 23, 2007 12:08:38 AM

I own a cottage which has a right of way (66 feet) beside me. I have used this for access to the river and my cottage for over 20 years. this is not my only access to the cottage its just very handy to use and save using stairs up above at street level.The new owners of the adjoining land and deeded right of way have blocked my access to this right of way with a gate and have built a shed halfway down it on the property line and blocking vehicle access to the cottage through the right of way. The shed is on the right of way.
They claim that since they own the right of way they can do what they please. I have signed letters from the previous owner of my cottage that he always had unfettered access and free use of the right of way, I also have a signed letter from the previous owner ( who owned it before them) that she gave me and the previous cottage owner free and clear access on the right of way.
What are my options ??

Thank You,

Michael

Posted by: Michael davies | Apr 11, 2008 12:59:44 PM

We purchased our property in Nov 2006 and found out just before closing that their is a right of way on our driveway for the neighbour to use the driveway to access his back yard. I think the Right of Way was put in place during a severance of the property in 1988. Is it possible to have this removed from our property with out having to wait the 40 year's to run out. That would be another 20 years.
The neighbour has his own driveway so it is not essential that he use ours.
Thank you Michelle

Posted by: Michelle | Apr 24, 2008 5:29:06 PM

I also own a cottage property that is land locked with access by a right of way.
I have also been parking beside my cottage which extends a couple of feet into the right of way, but does not in any way restrict access to the complainers.
They have access through an alternate route at the back of their property, and it is not necessary for their access.
I have maintained this "driveway" for over 20 years, grading, gravelling, and plowing.
The children of the previous owners have built 3 years ago and now want to restrict our access.
What recourse do you suggest.
thank you
deborah

Posted by: deborah | May 16, 2008 1:34:44 PM

HI,
We have lived at our address for 15 years. The township have since recently gave the laneway that leads into three properties a name. Problem is the new builders have decided that their survey says they own a 7 foot strip of land that cuts of access to the other two properties..stating its landlocked in. When we first moved in we would pay $1 to use the strip of land that runs parrellel to our property because our drive runs off it. I have done research on this and the right of way deal has been done since 1891 so over a decade. What happened is the house was built for hired help in 1912 in the middle of a farmers land. Since then a house to the right has been built and recently a house to the left. The house to the left bought the remaining land behind my property which includes the 33 feet long and 7 foot wide strip in front of my property. What is the law around this issue do i have right away no matter what because my house has been there for 100 years and the township has created and surveryed the road that leads to my property. He says that technically he could prevent the township from turning snowploughs around cause its his land the road leads too.

Posted by: Carmelle | May 25, 2008 1:20:24 PM

I have a 25 foot right of way on my land deed. New owners have moved in to the ajoining property and are planting Juniper bushes, on the right of way and funnelling my acdess to the right side of the right of way. My question is can they legally do this and do I have the right to ask them to take them down ??
Also part of their house is built on part of the 25 foot right of way. It has been there for several years.
Do I have any legal right to complain, or take legal action.
Thanks
Bill

Posted by: William Menton | May 30, 2008 11:45:44 AM

I am the owner of a farms with 4 right of ways accessing cottages. We are having issues with excess speed on these roadway, which come very close to farm buildings and homes. What right do we have as the property owners that the right of way runs through have to stop this from happening. Speaking to the owners of the cottages does not have any effect. Now that there is rental units the renters just do not care. We also have an issue with the township picking up garbage. They are going to travel the right to way to pick up the garbage, but will not open any gates to said cottages. The cottage owners are told to put thier garbage on the right of way on the farm property for pick up. this is a working farm with cattle on pasture, the township said it is not thier concern and that they have n desire to change thier decision as to where to place the garbage. I asked them about liability insurance if one of my cows gets into the garbage, cut on glass, etc. He did not think this would be an issue. Do we as property owners not have any rights to the property we pay the taxes on?

Posted by: Gerri | Jun 2, 2008 3:31:56 PM

What are the responsibilities of the owner and those with legal right of way over a shared driveway? We share a laneway driveway with four neighbors. One neighbour owns the property and the others have a legal right of way on our property deeds. Who is responsible for shovelling this driveway by law? We currently share the costs for a third party to plough it. Does this change any legal obligation on either part?

Posted by: Emma | Jun 10, 2008 1:34:06 PM

How do you know if the road that we are using to get to our property for 18 years is an access for us. There are 2 cottages that have to use this road which runs through someone elses property. This person will try and block the road by putting vehicles in the road. We even had to get the Opp one day and the opp told him if anyone got hurt on our property and he had that road blocked, he would be liable if anything happened to them. He now has dug trenches in the road so that we have a harder time accessing our 100 acres. We have contacted lawyers sereral times who have told us that because the road has been an access for us for all of these years, that he can't stop us from using it. They have sent him letters and he at one point has even called the lawyer and apologized to him for his behaviour. We are not sure what our rights are? Help.

Linda

Posted by: linda | Jun 25, 2008 5:35:32 PM

We have a cottage that borders a NON-PUBLIC Boat Launch to a Private Lake. The original owner of the land, who built the cottages some 38 years ago,left a 8'parcel of land (boat launch) so the cottagers, that he sold to could lauch their boats.

Over the years the launch has eroded our property and we have taking back a small portion of our land back. HERE is the Question. As boats have increased in size over the last 38 years, many cottagers would cross over our land to gain access to the launch. We have not had an issue with this over the years until the NEW OWNER Chained the Launch and started to CHARGE others for use of the BOAT LAUNCH.

We are no longer comfortable with people crossing our land as the owner of the 8' launch is charging people to cross over our property to access his deeded 8' Launch for which all of these cottagers have had an implied and some deeded use years.

There is no written document allowing anyone to cross a portion of our land to gain access to the 8' launch. Do we have the right to take our land back???

Thanks for your quick response
DG

Posted by: DG | Aug 8, 2008 6:19:45 PM

I own a parcel of land that I purchased some 12yrs ago. In the purchase agreement there is a clause that allowed the neighboring owner right a way to his property which has been accessed for the last 21 years. This agreement expires this year. Do I have to renew this agreement with the neighbor and can I request any amounts of money for the use of the right a way. The access that is being used goes right though the middle of my property and I am looking at developing shortly.

Posted by: mary | Aug 23, 2008 1:07:38 PM

Hello,

My wife and I are in the process of purchasing a cottage with land on a small Lake in the Lanark Highland area. The lake is of Federal property and the bulk of the land around is owned by various cottage owners. The access road to all properties from the highway is on a private land to wich most cottage owners have a deeded ROW access.
Upon having a title search done on the property that we wish to purchase, it was determined that the existing ROW on the deed actually does not exist. It was a Road allowance that was written over 38 years ago but no raod was ever opened there and only a bush trail exists and leads to no-where. The road that this cottage owner has been using for approximately 38 years, is the same one as that of all other cottage owners are using. The problem is that the current owner does not have it indicated on his deed as his legal access. We have had a new reference plan done and is now registered with the land registry office but we cannot have the existing road being used included on the transfer unless the serviant land owner gives us written permission. Also it is clearly indicated on the new reference plan that the actual road being used crosses on our property at one point for a distance of approximately 15 feet in width and about 40 feet in lenght. So far we have spoken to the Serviant land owner twice and he seems to be stalling on his decision and does not seem to want to cooperate in allowing us to register the ROW. If he refuses to give us written permission to register the access on the new deed, are there any options left? Can we use some sort of grandfather law or try registering a Notice of Claim?

Your advice would be greatly appreciated.

Thank you,

Mike Lavergne

Posted by: Mike Lavergne | Dec 16, 2008 2:41:54 PM


My family has had a lake front cottage on a beach for over 50 years. The beach has approximately 25 cottages. The neighbours walk up and down the grass from one end of the beach to the other. Unfortunatley,the neighbour adjacent to our cottage does not want people walking accross his property. In the winter he puts up poles so snowmobilers cannot ride. This neighbour has been on the property longer than we have. HOW CAN WE STOP HIM FROM PUTTING UP THE FENCE AND TAKING AWAY THE ENJOYMENT OF EVERYONE. IF HE PUTS UP THE FENCE NO ONE CAN WALK UP AND DOWN THE BEACH AS HIS COTTAGE IS IN THE MIDDLE OF THE BEACH. IT WILL ALSO RUIN OUR VIEW OF THE LAKE.

DO WE NOT HAVE A RIGHT OF WAY OVER THE PROPERTY SINCE WE HAVE BEEN WALKING ON IT FOR OVER 50 YEARS.
WHAT ABOUT THE COTTAGERS THAT JUST PURCHASED THE PROPERTY? DO THEY HAVE OTHER DEFENCES TO STOPPING HIM?
WHERE DOES THE PROPERTY LINE BEGIN? HOW FAR FROM THE WATER? DO YOU KNOW HOW MANY FEET HE MUST LEAVE OPEN FROM THE WATER TO THE GRASS IF HE CAN PUT UP THE FENCE.


THE PROPERTY IS IN SEVERY TOWNSHIP- JUST OUTSIDE OF ORILLIA.
YOUR REPLY WOULD BE GREATLY APPRECIATED. ANY INFORMATION YOU CAN PROVIDE WOULD BE QUITE HELPFUL

THANK YOU FOR YOUR ANTICIPATED CO-OPERATION

Posted by: Batsheva | May 11, 2009 10:10:27 PM

I have a commercial property that I purchased 5 years ago to establish a studio/gallery. At that time I regististered the right-of-way across my neighbors property. Soon after, he installed a fence around his property to enclose his two, mean and ferocious German Shepard guard dogs. He acknowledged that the right of way was there, and installed a gate to give me legal access.

I feel my life and the lives of my patrons and friends are threatened to a point that we have never gone thru that gate without my neighbor being present to hold back his bodyguards.

As well, the neighbor blocks the right-of-way with often, more than one car.

The cars and the life threatening guard dogs that block my access has thorted my plans of using the back garden as display space for my art and sculpture, resulting in a significant impact on my inspiration and my business.

Please advise.

Thank you,

Gregori

Posted by: Gregori | Jun 13, 2009 8:00:48 AM

Hi i'm hoping you can help me.
I live in PEI Canada
Our property owns the 1/4 mile clay driveway,
Our neighbors who are farmers have the right of way,
My husband & I are continuly doing upkeep $$$$$
These farmers drive on it after a heavy rain , tearing it up & getting
Manure all over!!!! This is very discouraging!!!
They give no assistance with upkeep. Nor
Help with snow removal
Just wondering what the laws or rules are
Concerning something like this
You reply would be apprcated

Posted by: Tammy Palmer | Jul 27, 2009 7:32:25 PM

Background:
My husband and I are considering the purchase of a property that does not have a deeded R-O-W to use a common road that crosses 4 other properties before reaching that of the property of interest. An agreement was drawn up by an attorney in 2001 and signed by all owners granting R-O-W for a period of 21 years. The agreement indicates that a deeded R-O-W is available at our own cost (surveys, attorney fees, etc.). We would like to purchase the R-O-W if we were to purchase the property.

Questions:
1) If ownership of the other properties has changed since the signing of the agreement, are they still obligated to permit us to obtain the deeded R-O-W at our cost?
2) If we are successful in procuring the deeded R-O-W, will it expire in 40 years (unless we register)?
3) Is there a benefit to obtaining the deeded R-O-W if we can just register the use via the registry act?
4) Can an owner of the property we are using refuse to allow us to register the R-O-W?

Any additional information you can provide is appreciated.

Kind Regards,
Lauri

Posted by: Lauri V. | Aug 17, 2009 1:22:11 PM

I have a cottage with a ROW. I would like to know if an owner of his portion of the ROW can make the road impassable to others by digging holes and making huge potholes. He intern has to use the ROW to get to his property and then the other cottagers are faced with a road that becomes almost impassable. What if one of the cottagers need a fire truck or ambulance and cant get through because of the potholes? We all do pay property taxes...Thankyou for any info that you can offer me and the other cottagers..

Posted by: Ian | Aug 23, 2009 9:04:03 AM

Hi There:
I own a farm in P.E.I.
On my property, near my new home. There exists a 6'0 wide laneway for 50 years + that a neighbour farmer claims to have used to get to his property. Gates and No trespassing signs have been erected 40 years and have been ignored, as I the owner lived in Ontario for 43 years, and could not control who was using the laneway, only that the neighbor farmer claimed using it for years and claims squatter rights. Now we closed the laneway, and gave the farmer an alternate laneway around the farm at 13' wide. Now he argues with his lawyer, they insist to have 13'8 +. I would like to know the law that could change width measurements, taking our legal rights from us.Who wins here?

Posted by: John L Gavin | Sep 6, 2009 12:58:40 PM

Hi there!
Please correct the width requested above. I said 13'8. This should 18 feet-Sorry about that.In fact, the 18 feet requested goes through my 10 acre blueberry field, depriving me of income and taking my rights from me.
John L Gavin

Posted by: John L Gavin | Sep 6, 2009 1:05:14 PM

A private ROW shared by three lots. There are four 30 foot spruce trees right next to the ROW. Their roots are on the surface of the ROW and their branch's are over the ROW. The ground is soft. A proper drive way will likely necessitate the removal of the roots on and under the ROW. Can this be forced if the owner of the trees does not want these roots cut. Thank you.

Posted by: Gerald Brennan | Apr 25, 2010 6:51:24 PM

Hello From Brantford, ON.

I have a neighbor (in the city) who has access to a right of way that was never supposed to pass behind my home to a side street(west). as it was originally designed to end behind my home and travel in the opposite direction (east) towards another street. The Ontario Pin map shows the access NOW ends behind my home and ends two homes east.

HOWEVER I respect my (nutty) neighbors desire to use my property/right of way. What options do I have to gate this right of way as so many others have done??
and
If I was to place a "car port" over the right of way (with ease of access through)is there a minimum height allowance for passage?

Thanx in advance,Rolly

Posted by: Rolly | May 20, 2010 2:28:28 PM

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