Apr 01, 2003

Easements - Obsolete or Not - Property Law Act #358


By Gerry Neely
B.A., LL.B.

Section 35 of the Property Law Act provides for the cancellation of an easement if it is obsolete due to changes in the character of the land, the neighbourhood or other material circumstances. Without this section, the following easement interests, which were the focus of two recent cases before the British Columbia Court of Appeal, could go on forever.

The first case involved an easement given in 1994 as part of a phased strata development. It gave the developer and other workers access to the phase one common property to move construction material and equipment necessary for the completion of the phase two building. It also gave the eventual owners of the phase two units a right of access through the common property of phase one to the street.

The developer went bankrupt, preventing construction of phase two as planned. It was sold to another developer in 1999, who intended to build a structure similar to the original plan; however, it would be a different strata corporation separate from phase one. The new developer needed the access and construction easements as well, but the phase one owners opposed it and applied for an order declaring the easements obsolete.

They argued the easement's purpose was to assist in the completion of phase two, as part of a strata development governed by one strata council. The developer responded that the agreement creating the easements did not contain express wording limiting development of the phase two lands to the original developer's plan. He argued the first developer would have intended to have as much flexibility as possible, ensuring he or his successors continued to have access to facilitate the development of the phase two lands.

The Supreme Court of British Columbia judge interpreted the easement document as a whole, concluding the easement was obsolete because the parties intended the easement to apply only to the original plans.1

The second case involved a 12-foot easement created in 1955 along the common boundary of one lot, providing access from a street to a private garage on the adjoining lot. While the recitals in the easement document stated that was the purpose for creating it, the express grant of easement in the remainder of the document used broader language. It stated that the easement could be used for all purposes connected with the use and enjoyment of the land.

The garage was demolished in 1969 to make way for a 51-unit apartment building. The apartment owners made minimal use of the easement until the owner of the lot over which the easement ran tried unsuccessfully to make a deal for its removal. In this case, the apartment owners were successful in the Supreme Court of British Columbia because the judge concluded that the reference to "all purposes" prevented the easement from becoming obsolete.2

Each loser successfully appealed the decisions of the Supreme Court judges. The developer won when the British Columbia Court of Appeals held that if the parties had intended to expressly limit development to the original plans, it would have been easy for them to have stated that when the agreement was prepared. The second developer's intentions to use the easements for the purposes set forth in the original agreement also helped.3

In the second case, the lot owner won, because the court considered the changes that had taken place in the neighbourhood and the apartment owners' failure to use the easement. This outweighed the broad language upon which the Supreme Court judge relied.4

 1. Portrait Homes Ltd. v. Strata Plan LMS 1191, S.C.B.C., New Westminster Registry, Reasons for Judgment, August 5, 2000.
 2. TDL Group LTD. v. Harvey, S.C.B.C., New Westminster Registry, Reasons for Judgment, March 29, 2001.
 3. TDL Group LTD. v. Harvey, B.C.C.A., Vancouver Registry, Reasons for Judgment, April 22, 2002.
 4. TDL Group LTD. v. Harvey, B.C.C.A., Vancouver Registry, Reasons for Judgment, April 22, 2002.

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