Residential Tenancy Act - Water Line Easement #35

May 01, 1983

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By Gerry Neely
B.A. LL.B.

A local Judge of the Supreme Court has decided in a Chambers application, that a landlord who gives notice to a tenant to vacate the landlord's premises because the landlord intends to occupy them, is entitled to do so even though only part of the premises are to be occupied by the landlord or by his family. Section 16 of the Residential Tenancy Act allows a landlord to terminate a tenancy on two months' notice if the landlord or a member of his immediate family bona fide intends to occupy the premises. In the facts of this case, the landlord gave a notice in which he stated that his son intended to occupy the premises. The landlord's son occupied one bedroom only from time to time over a period of a year following termination of the tenancy. The remainder of the suite was re-rented. The tenant complained and following a hearing before the rentalsman, the landlord was ordered to pay compensation of $1,000.00 to the tenant.

The rentalsman's interpretation of Section 16(2) which allows a landlord to regain possession of his premises where he " . . . bona fide intends that he or his child or a child or parent or his spouse will occupy residential premises" meant the occupation of all of the residential premises.

On an appeal of this question, the Court disagreed with the rentalsman, in part because of the Court's interpretation of the social policy behind the implementation of the Residential Tenancy Act. That social policy was stated to provide for "security of tenure for tenants and for the setting of fitting and stable rents. A large measure of government control is being substituted for full freedom of private contract in accordance with law". In the implementation of that policy, the Legislature recognized by Section 16, that the landlord may require the use of his own premises for himself or for his immediate family. The tenant's security of tenure is therefore taken away in these very limited circumstances. In the opinion of the Court, the only test to be met was that of bona fides and having satisfied the Court of his honest intention, it did not matter whether the landlord required the whole or only part of the premises for his own or his immediate family's use.1

In another case, an owner of land subdivided it into two parcels and in anticipation of selling Lot A which had a well on it, granted an easement in favour of Lot B which the owner intended to retain. The registered easement allowed him to draw water from the well, and for that purpose, to install a water line from the well over Lot A which he was selling to provide water to Lot B. The easement contained a provision that "water shall be permitted to remain in and flow through the water line at all times, and that the water discharge valve in the pump house shall not be closed and the power for the pump shall not be turned off except for maintenance and repair purposes". After the sale of Lot A the vendor claimed to be entitled to the exclusive right of all of the water capable of being pumped from the well. The purchasers argued that they were entitled to draw water from the well and the issue then was whether the easement was effective to give the vendor the right to use all of the water to the total exclusion of any use by the purchasers of Lot A.

The decision of the Court may be summarized as follows. At common law, there is no property right in ground water and therefore it is not possible to grant an easement over the water in a well. It is possible however to grant an easement which gives someone the right to convey water from a well on another person's property, over that property, for the use of the adjoining property.

The easement which the vendor had given himself over Lot B was valid as a means of conveying water to Lot B but did not extend to giving him exclusive use of the water from the well. The Court's decision may have been based partly on the evidence of the purchasers that their use of the well did not have the effect of making water unavailable in the pipeline and therefore the vendor was unable to establish that his rights had been injured or were threatened with injury. The vendor's order for an injunction was dismissed. The vendor's only right was to share in the well water and his share would be that quantity which at any given time, would fill the water line.2

  1. Re Sandu and Yzereff et al, 140 D.L.R. (3rd) p. 761.
  2. Harrison v. McMahon, 139 D.L.R. (3d) p. 566.

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