Often, a larger portion of the driveway lies on one neighbour’s property, leaving the other neighbour with only a narrow strip that is not wide enough for vehicles to pass over without having to drive over the other’s property.
Disputes can be avoided when the scope of obligations and rights are clearly set out in an agreement between property owners and registered on title. Without that, conflict can arise over ownership, use, and the maintenance of the driveway. There may be questions regarding what part of the driveway each side is entitled to use, when, and who might be responsible for maintaining the driveway surface, or removing snow, for example.
If an agreement cannot be negotiated between the adjoining neighbours, a number of legal principles can be engaged to help determine how these claims are to be resolved should the dispute land in court. Possible remedies include the granting of prescriptive easements conferring a right-of-way, or title to a portion of the property by adverse possession. Without any ownership right or right of access, one or both of the neighbours may be left in the position of a trespasser whose entry onto the land in question can be prevented.
Adverse possession, commonly known as squatter’s rights, can confer an ownership right to property whose title is held by another. Adverse possession is not easy to establish. A person would have to show that he or she was in actual possession of a piece of land, had the intention to exclude the true owners who were in fact excluded and that such possession had been opened, notorious, peaceful, adverse, exclusive and continuous. Intent to exclude can be inferred when possession occurs under colour of right or by mistake as to the title or boundaries.
Additionally, this continuous period of adverse possession had to have occurred for at least 10 years before the land in question was registered in the Land Titles System which is the system of electronic property registration in place across Ontario. It replaces the old registry system which recorded property interests on paper documents held at individual registry offices throughout the province.
By virtue of section 51 of the Land Titles Act, any rights by adverse possession or from prescriptive easement had to have crystallized by the time land was registered in the Land Title System. Because all of the land in Ottawa has been registered in land titles, instances of viable claims for adverse possession and prescriptive easement will become more uncommon as time goes by. A recent case which confirmed the requirements to establish adverse possession can be found in Fazzari v. Pynn (2013, Ont. Superior Court).
Prescriptive easement/doctrine of lost modern grant, and easement by necessity
Easements can give a right to access a shared driveway, including a portion of the neighbour’s property. This is not an ownership right like adverse possession. Nor does it permit the parking of the vehicle on the neighbour’s side of the shared driveway. It is about the right to drive over part of a neighbour’s property to reach another property. A right of way, for example, is a type of easement.
In situations where there is no specific grant of an easement (written agreement between two neighbours), one may be established by virtue of two other legal principles: prescriptive easements under the doctrine of lost modern grant, and easements by necessity.
The leading case in Ontario relating to prescriptive easements and the doctrine of lost modern grant (discussed below) remains Henderson v. Volk (1982, Ont. Court of Appeal). Under the doctrine of lost modern grant, which the Court of Appeal acknowledged and affirmed, the claimant must demonstrate use and enjoyment under a claim of right that is continuous, uninterrupted, open and peaceful for a 20 year period. Where all of these elements can be established, the law will adopt a legal fiction that a grant of an easement was made despite the absence of any direct evidence that he was in fact made.
Henderson v. Volk was cited in the more recent 2013 Court of Appeal case, 1043 Bloor Inc. v. 1714104 Ontario Inc. The Court’s majority held that a claim of right or use as of right means the claimant must have enjoyed the easement not as a result of permission but on the assumption that it had a legal grant of the easement. In that case, the owner of 1043 Bloor Street West could only access parking spaces at the back of its property by driving over a laneway shared with an adjoining owner. 1043 Bloor Street West had been built almost to the lot line, leaving mere inches between the building and the boundary of the property. The laneway had been built by the neighbour that ran along the boundary, and for years the owners and occupants of 1043 Bloor Street made use of it to reach parking in the back.
The owner of 1043 Bloor Street lost a trial, appealed, and lost that as well, because before the 20 year period had run he had approached the neighbour to ask his permission for the right to use the lane. The court determined that in doing so it was clear that he was not using the laneway under the assumption he had a legal right to do so, and the 20 year period was therefore interrupted.
The second type of easement is an easement by necessity. This easement arises when the right is deemed necessary for the reasonable use and enjoyment of land that is created by operation of law and not defeated by the Land Titles Act. The difficulty with obtaining a court order granting this type of easement is that the person claiming it has a very heavy onus to show that it is in fact necessary. The usual cases in which one is granted are those where the homeowner is completely landlocked - whether by foot or vehicle.
Court decisions in these areas of law are highly dependent on the facts of the individual cases, and are sometimes difficult to reconcile. Given the potentially significant consequences to owners of shared driveways, getting appropriate legal advice is highly recommended.
For assistance in evaluating the dispute over a shared driveway, or an estimate of costs, time and risk, please Contact Menzies Lawyer at 613-722-1313 or firstname.lastname@example.org.