Encroachments on rights of way – they do not entitle the dominant owner to require removal

We typically have clientele who complain to us that anyone has encroached on an easement or suitable of way by developing an addition, garage, fence or hedge on the ideal of way  or easement.  They assert that their “legal rights” have been impinged upon and their suitable to use the appropriate of way is restricted or diminished by virtue of the encroachment.

Often, these consumers inquire us to send letters to their encroaching neighbour insisting that the encroachment be removed and that the ideal of way be retained certainly totally free and distinct in accordance with its suitable and total boundaries as contained in the grant of the easement.

In the case of Weidelich. v. de Koning,(2014) 122 O.R. (3d) 545, the Court of Appeal had to consider the effect of a creating addition that encroached on to a private suitable of way, which was granted for the intent of vehicular entry to homes of the owner’s neighbours. The driveway ran from the street alongside the owner’s dwelling and then together the backs of the owner’s and his neighbours’ homes so that the neighbours experienced access to the parking parts guiding each individual of their homes. Every single owner owned the land on which the ideal of way was positioned as part of his or her house but it was issue to rights of way in favour of the other entrepreneurs. The owner developed an addition on a portion of his land that encroached on that aspect of his land that was subject matter to the ideal of way. Four of the neighbours who had the profit of the right of way above the owner’s house objected and brought an application.

The trial judge located and it was admitted that the neighbours’ entry was not considerably interfered with inspite of the encroachment. The court held that in the long run, that was the test in get to require the proprietor to clear away the encroachment. The court docket held that it did not issue if the proprietor inherited his house with the encroachment or intentionally built into the right of  way as extensive as the encroachment did not considerably interfere with the neighbours’ access. Even lasting buildings might not significantly interfere and therefore do not give increase to a proper to removing. The circumstance includes a sketch displaying the spot of the suitable of way and the encroachment.

The Court of Attractiveness did not find that the building addition did not encroach. It plainly encroached on the correct of way. It held, even so, that in get for the encroachment to give rise to a lead to of motion (the Courtroom of Enchantment refers to the encroachment currently being actionable), there ought to be substantial interference with legal rights granted to the neighbours. The Courtroom found  that the laneway remained available and passable both of those ahead of and right after construction of the encroaching building and dismissed the software.

The neighbours surface to have also sought an get that the correct of obtain and ingress contained in the grant of ideal of way incorporated the ancillary right to snow removal. The court docket confirmed the legislation that ancillary rights are people that are fairly essential to the satisfaction of the right of way granted and that the resolve of the existence and scope of any claimed ancillary right is a factual a single. Nevertheless, the record did not contain adequate specifics to make a resolve. In conclusion, the courtroom claimed that if disagreements arise in the long run above ancillary rights, they can offer with the make a difference based mostly on acceptable evidence but, hopefully, prevalent perception and neighbourly goodwill will obtain a option.

This circumstance may possibly be of help in answering your clients’ concerns about neighbourhood disagreements. Most likely, it will be of assistance in encouraging your shoppers to locate a little something else to complain about.