October 2009

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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 Ontario were registered under the registry system.  It was an appeal of a lower Court decision (Kaminskas v. Storm (2007), 54 R.P.R. (4^th) 239) talking about prescriptive rights and illustrating a manner in which they could be lost.

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 Niagara Falls in 1991 which had a 9-foot wide driveway, three feet of which were located on the adjoining neighbour’s property, a property acquired by Storm in 2006.  At the time of his purchase Kaminskas was concerned about the ability to park in the driveway because no parking was allowed on the street and made his “fatal” mistake by asking for a letter from the then current owner of the Storm property.  That person gave his consent in writing to the parking in the driveway in 1991.

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 Ontario are now registered under the land titles system converted to qualified land titles as we move almost all properties across Ontario into a system of electronic registration.  Rights of adverse possession and prescriptive rights under the Real Property Limitations Act are specifically excluded by the provisions of Section 51 of the Land Titles Act.  Qualified land titles only preserves those rights which had been acquired by adverse possession, prescription, etc. on the date the property was placed in land titles – the PIN creation date.  Accordingly, this kind of issue soon will only be of historical interest.

 

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 September 20, 1999.  What was odd was that although the lower court decision was made in 2007 and Court of Appeal decision in 2009, neither decision mentioned that fact or referred to Section 51 of the Land Titles Act.

 

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.

 

Bruce McKenna