Court of Appeal clarifies the law on prescriptive rights
There was an interesting recent Ontario Court of Appeal decision (Kaminskas v. Storm (2009), 95 O.R. (3d) 387) for those lawyers, like the writer, who developed his practice approaches at a time when most of the properties in
The Real Property Limitations Act says in Section 31 that a right to an easement may be acquired by prescription if actually used for twenty years without interruption and is deemed to be “absolute and indefeasible” after forty years unless it was enjoyed by some consent “expressly given or made…in writing”.
Kaminskas purchased a house in
The lower court held that the prior owners of the Kaminskas property had parked in the driveway since before 1950, 41 years before he acquired the property and 56 years before the dispute with Storm arose in 2007. It held Kaminskas had prescriptive rights established before 1991 and the consent letter after 40 years did not adversely effect them.
The Court of Appeal said that while that was a fair and equitable result, it was a statutory interpretation, not an equitable question and it should only focus on the specific words of the Real Property Limitations Act. That act provided in Section 32 that the applicable time period was that “next before the claim” and since the claim arose in 2007, after Storm put a fence in the driveway, the written permission in 1991 eliminated the previously indefeasible prescriptive rights.
Obviously, that presents the disconcerting possibility that an owner like Storm could have a property subject to an indefeasible prescriptive right, could grant consent in writing and then could precipitate a claim and have the right extinguished. However, the Court of Appeal said that is the correct statutory interpretation and equity does not apply.
When I first read the case , I thought it was only academically interesting because most of the properties in
I did a search of title of the property in question in the Kaminskas v. Storm case and discovered that the property had actually been in qualified land titles since
Given the specific facts of the Kaminskas v. Storm case that shouldn’t have made any difference because, based on the decision made by the Court of Appeal, there were no prescriptive rights in existence in 1999 when the property went into land titles, because those rights had been lost in 1991. However, if the property had gone into land titles before Kaminskas acquired the property in 1991, one would have thought that the correct interpretation would have been that the prescriptive right did exist on that date and, since Section 51 of the Land Titles Act made it unnecessary for the Court to look at any action since that date because the Real Property Limitations Act would no longer apply.
I am surprised that neither the lawyers for Kaminskas or Storm, the lower court or the Court of Appeal identified the fact that the property was registered under the Land Titles Act and discussed the implications of Section 51 thereof.