Right of Way Question from Canada

Gannon White · #1 07-13-2006, 01:46 PM

Hi all, I am fairly new to this forum and have been trying to learn and understand as much as I can....

I have a friend who has a large commercial horse riding operation. It has been there for at least 10 years. The property is approximately 600 acres so is very large.

She is attempting to turn one of her chalets into a wellness centre. The issue is that in order for her to get to her own chalet she needs to use someone elses driveway from another road. This is the only access. This road has always been used for this access.

Now, within the last few years, a new owner has bought the property backing hers and has a piece of land that is useless to him. He is insisting (ya right) that she buy this piece of land from him in order to use his driveway/road. He has given her one year to buy (she can't afford and wouldn't anyway) then he will fence his property effectively cutting off her only access.

I was under the impression that even without and easement a well established right of way could not just be removed on whim.

I am in Ontario Canada.

Any info would be helpful here. SHe is very distressed as her husband has just died and this man has become a complete bully to her since his death. (Nice guy eh?)

(She has a lawyer so I'm not sure why this lawyer wouldn't help in regards to rights of way unless she's the wrong type of lawyer.)

This is an emergency situation.

Thanks in advance for any help given.

Gannon White

Codee · #2 07-13-2006, 04:19 PM

In america it is called a prospective easement. This easement exists whether written or not. You need to use the land open and without express permission from the owner for five to seven years depending on state.
When you sue for a quiet title action the easement becomes "perfected" and is recordable. Rights of Way for public use because the public has always used them is similar but not accurate for private paties.
But in Canada who knows.

Gannon White · #3 07-13-2006, 06:38 PM

Okay, thanks, that will give me a good starting point, I know the countries are different but we're both based on the same common law. I didn't realize that a right of way could also be an unwritten easement. I seem to remember from long ago that it was 7 years in Ontario, I'll try to find out, will probably have to look up the civil code or something.

Do you run across any Canadians here? I sure would like to meet them.

Codee · #4 07-17-2006, 10:06 AM

Right of Ways generally are for a general class of people. This class is usually the "public." In general "Easemants" are for a specific group or individual and they give rights to those parties only.

#5 07-23-2006, 02:44 PM

You may want to see if anything has ever been recorded, however they do that up there. If there is an easement already on record, then your friend should be okay. However, down here, you may have a right for ingress and egress, but you cannot make any improvements to the easement, so if she needs to upgrade the road, she may still run into trouble there, if she is going to use it for access for a business.

Gannon White · #6 07-23-2006, 06:03 PM

Thanks, I have checked, it has never been registered but has been used for over 23 years. She does not need to improve it, he has threatened to close it off by fencing it. He seems to be under the illusion that he can change a right of way and doesn't seem to understand easements are burdens on the land, not the people. Stupidly I cannot seem to find how long it takes to establish a right of way though I do recall it was seven years for Ontario but I would still like the documentation. This man actually sounds mean and stupid enough to block off her passage, at which point I'm not sure what the proper recourse is, I feel it could be very severe as it would hinder her from engaging in commerce. Thanks for all your input. I have not found major differences between our countries, just some of the words are different. We are both based in English Common Law.

gldskr · #7 07-24-2006, 08:35 PM

I think you also have to consider whether your friend's 600 acres are contiguous or fragmented. If they are of the former and no valid easement has been recorded, she cannot enforce which has been customary. If, however, this portion of her property is separate, an implied easement attaches to the property, not necessarily from the same road though. The seller of that tract of land is responsible for providing the easement across his own property for her access, in which case, she may have to build a road. She may have to build a road in either case and her best option may be to buy the land and access that she needs.

gldskr