Property Law Act - Encroachments and Easements, Power to Allow, Modify or Cancel #273 / #274

Aug 01, 1997

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By Gerry Neely
B.A. LL.B

While from time to time we all rail against too many laws weighing us down, there are laws created by legislation which provide remedies for the problems created by our shortsighted predecessors - in title to the property we own and the strict application of the law to those problems. An example of a problem, is a building that encroaches upon another property, or an easement that no longer serves its purpose. The example of the legislation that allows the courts to remedy those problems is the Property Law Act.

Before it became law, virtually the only power a court had when a building encroached was to order it to be removed, and with respect to easements, little or no power to vary or cancel them. Now with the Property Law Act, the court can still order the removal of the encroachment, but it also has the power to grant an easement for the land encroached upon, or to give title to that land to the encroaching owner, on payment of compensation to the owner whose land is encroached upon.

An example of the power to permit an encroachment to continue is found in a case involving adjoining properties, whose owners incorrectly accepted the fence between their properties as the boundary. One house encroached upon the neighbour's property to such an extent, that with the true boundary, the owner would have had to trespass to obtain access to the rear of his house. An easement was given, not only to accommodate this encroachment, but to provide this access. The owner who obtained this benefit was ordered to pay $3,200 to the owner whose land assumed the burden of the easement.

In another case, neither adjoining owner was aware that a barn built by one owner encroached upon the other owner's property. When the encroachment was discovered, the encroaching owner asked the court to vest title in his name for the area encroached upon, upon payment of compensation to the other owner. In turn, the other owner asked that the barn be removed, so that the other owner could put a garden in its place.

Taking into consideration the value of the building and the difficulty and expense of removing it, and the concrete pad upon which it sat, the court gave the encroaching owner an easement over the other owner's property for the duration of the life of the barn, upon payment of compensation.

The court can cancel an easement when changes in the neighbourhood, the land, or other circumstances have made it obsolete. An owner of waterfront property had an easement for access through adjacent property. The owner had other access and did not use the easement for some years, until she finally decided to clear it for her use. The adjacent property owner then applied to have the easement cancelled, on the ground that it had become obsolete and cancellation would not injure the owner of the waterfront property. Whether modification or cancellation will injure the person entitled to the benefit of the easement is another factor the court can consider. The court agreed that the easement could be cancelled without causing injury to the other party, who had the benefit of the easement.

The owners of two adjoining lots had a common road between them to provide access. One owner built a garage, which encroached upon the easement. This owner claimed that the easement was obsolete when the other owner applied for an order to remove the encroaching garage. Since the parties were using the common right-ofway, it could not be said to be obsolete and the encroaching owner was given six months within which to remove the building.

Three adjoining, separately owned and operated, commercially busy lots had access to a highway over a nine metre strip parallel to the highway, at the front of the three properties. All three properties had given and received to and from each other, the burden and benefit of mutual easements over this strip of land. In anticipation of building a swimming pool, which would encroach upon part of the easement, an owner applied to modify the easement to have that part released. He failed to satisfy the heavy onus placed upon someone who argues that an easement should be modified or cancelled because it is obsolete, when the evidence established that the easement benefited the guests and customers of each of the businesses.

Another factor a judge may consider is whether "the unreasonable use of the land will be impeded, without practical benefits to others, if the registered charge or interest is not modified or cancelled."

This factor was applied in a case where an owner decided to build a condominium complex on his property. The construction of the building would encroach upon an access easement given for the benefit of an adjoining property. The encroachment was minimal and the removal of the encroached upon part would have little impact upon the owners of the adjoining property.

The condominium project owner at first tried to negotiate compensation for the voluntary, partial release of the easement. However, the owner having the benefit of the easement, demanded a price equivalent to the market value of the land, as if it were being sold as fee simple property.

The judge concluded that the reasonable use of the land for a condominium complex would be impeded if the easement was not partially released and that the portion of the easement involved did not have any practical use to the benefiting owners.

With respect to the question of compensation, the Act states that compensation is to be awarded only to a person who suffers damages. The benefiting owner was unable to show that they would suffer any economic loss as a result of the modification of the easement and no compensation was awarded.

The Act may even be used to curtail or remove a nuisance, resulting from the unreasonable use of the easement by the person having the benefit of it.

An easement over a ten foot strip had been granted in 1950, to provide for the maintenance of the means required to transport water for the benefit of the neighbour's adjoining property. Installation of a four inch plastic pipeline in 1984, eliminated the necd for periodical inspections of the waterline. Despite that, the neighbour daily entered the easement strip to inspect a water box and in the course of doing this, subjected the female owner to verbal abuse. A combination of a change in the character of the land from treed to residential/farm and the unreasonable use of the easement, allowed the court to modify it to limit the right of access by the neighbour.

It will come as no surprise, that an easement which gives the benefiting owner wide rights of use or access, can render the land with the burden of the easement almost valueless. In one case, as a condition of her purchase of the land, an individual was able to obtain from the seller an easement over a large adjoining parcel of land retained by the seller. The individual's intention was to create for herself a buffer zone for privacy between her property and the remaining valley. The easement gave her a right-of-way over a significant portion of the property, the right to make improvements including fencing, lawns, trees, plant life, paved or unpaved roads. A pool, outbuildings and septic tank had been erected upon the easement area.

The parcel was subsequently purchased by a farmer who grew daffodils, who poisoned grass on the easement area to clear the area for the planting of bulbs. The farmer applied for an order cancelling the easement, arguing among other things that the inability to farm the property meant the individual having the benefit was effectively the owner of the easement area.

Both the trial judge and the Court of Appeal held that even though the owner's rights had been significantly reduced, the easement was valid. The easement was of practical benefit to the individual who would suffer injury if it were cancelled, the court refused to cancel it.

In another case, a building scheme provided that only one house could be erected upon each lot. During the initial stages of the development, a house was built upon a large lot, which was then subdivided by metes-and-bounds description to create a second legally defined lot. The owner of the second lot held it for 25 or more years and then applied to sell it. An application was brought to clarify the meaning of the building scheme and specifically whether a house could be constructed on the second lot. The court unfortunately came to the conclusion that the building scheme did prevent such construction.

The Property Law Act cannot be used to increase the benefit an owner has through an easement over adjoining property. An owner, who has a right of access to the municipal road over adjoining land, applied to the court to vary the terms of the easement, to allow for the installation of a water line to the street and a sewer line under the easement. The court held that the easement was quite clear in its purpose and the owner having the right of access could not increase the burden upon the owner of the other property.

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