Saba Ahmad is a Litigator working on environmental, administrative and commercial matters in Toronto. Learn more at www.sabaahmad.com
There’s a lovely stretch of houses in my neighbourhood along Glenlake Road, but my heart sinks whenever I pass by the neighbours at 100 and 104.
Before I read about the dispute in the newspaper, I saw the signs posted on what appeared to be a shared driveway between the two homes. I think one sign read “IT’S MINE – GET IT???” I do not remember the exact wording, but I clearly recall the mean spirit with which the message was publicly delivered.
Then I read the Toronto Star article. A new owner at 100 Glenlake Road, Ms. Valentina Roslin, discovered the driveway was mostly on her property. Suddenly, after using the driveway to access her garage for over 33 years, 97 year-old Mrs. Perkovic and her family were denied access.
Today I read about a similar dispute in the ORs. In 1043 Bloor Inc. v. 1714104 Ontario Inc., the Ontario Court of Appeal canvassed the law of “prescriptive easements”.
In that case, two neighbours along Bloor Street had been using a laneway to access parking in the backs of their properties. The appellant’s property was served by the adjacent property as the laneway fell on the “servient” owner’s land.
The appellant was seeking a declaration that it had the right to continue using the laneway. Like the Glenlake owners, the laneway had been shared for over 33 years.
The Court of Appeal denied the request.
To establish a prescriptive easement, the claimant must “demonstrate a use and enjoyment of the right-of-way under claim of right which is continuous, uninterrupted, open and peaceful for a period of 20 years.” (at para. 38, internal citation omitted).
In the case of the Bloor Street neighbours, the 20 year period was interrupted in 1987. A previous owner requested permission to continue using the laneway. The owner of the servient property refused to execute a document to grant the permission requested. The Court of Appeal found that the request for permission showed there was no “claim of right”. The request showed the owner knew he did not have the right to use the laneway and was relying on good neighbourliness to continue his enjoyment of the adjacent property.
In a concurring opinion, Laskin J.A. emphasized the importance of the servient owner posting “Private Driveway” signs following the request in 1987. The signs were a protest, which interrupted the prescriptive period.
In both decisions, the Court of Appeal provided the policy rationale behind the denial of a prescriptive easment. It is unfair to burden a servient landowner’s property without compensation. Next, creating a prescriptive easement in these circumstances would deter people from permitting others to use their property in the future – since “acquiescence” could lead to a loss of property rights.
The Bloor Street dispute is different from the Glenlake dispute in three ways.
First, Ms. Roslin was unaware at the time she purchased her property that she owned the driveway. The purchase price she paid did not reflect its exclusive use. In those circumstances, it is not unfair to burden her property by a prescriptive easement. She does not require compensation for the loss of a right she did not know she had – and never paid to acquire.
Second, Mrs. Perkovic always thought she had a right to use the driveway – as did her neighbor. By all accounts, nobody knew the driveway fell almost entirely on 100 Glenlake’s side of the property line. This was not a case where Ms. Roslin’s predecessor granted Mrs. Perkovic permission. There may have been a permission at some point in the distant past, but it was forgotten years ago and access was viewed as a right until Ms. Roslin purchased the property.
Finally, the manner in which Ms. Roslin excluded Mrs. Perkovic from accessing her garage showed a total lack on consideration for her neighbour, which would not gain sympathy points with any judge. That behaviour is described in the Toronto Star article, so there is no need to repeat it here. But it does bear noting that the dispute was upsetting for many people who live in the neighbourhood, myself included. Living in this community, it often feels like the people here genuinely care about one another. But whenever I walk past 100 and 104 Glenlake Road, I am starkly reminded that the sentiment might just be a misimpression.
It has been over two years since the Toronto Start article was published and the dispute arose. Under Statute of Limitations law in Ontario, it’s probably too late for the Perkovic’s to make a claim if they were inclined to do so.
I have spoken with Mrs. Perkovic’s son and it seems the family has moved on. Hopefully in time, when I walk past the home, I too will be able to focus on appreciating the pretty tulips, rather than prescriptive easements.