Jul 14, 2020

Establishment of easements and other rights in neighbouring properties can be difficult

St. Boniface Warehousing Ltd. v. BBD Holdings Ltd., 2019 MBQB 181 (CanLII)

English law has - for centuries - paid special attention to protecting rights in real property. The expression "A man's home is his castle" reflected the prevailing view of judges and lawyers (in particular, conveyancers), at least insofar as royalty / the aristocracy / the landed classes were concerned. In disputes between rival claimants to land - or an interest in land - the system favoured the current owner / occupant and made it difficult for a challenger to dislodge the current owner / occupier.

As nations became more sympathetic to "progressive" and "collective" viewpoints, this deference to the sanctity of property rights has been eroded. An illustration of this can be seen in the (relatively) recent repatriation of Canada's constitution (from the UK Parliament) in which property rights protections were conspicuous by their absence. However, notwithstanding the loss of enthusiasm for protecting property rights, they are still substantially protected under current Canadian law. Illustrations of the hesitancy of the Courts to overlook vested property rights can be found in certain cases dealing with easements, restrictive covenants and profits à prendre. Consider the following holdings:

  • St. Boniface Warehousing Ltd v BBD Holdings Ltd (2019 MBQB 181, judgment given December 9, 2019, hereinafter the "St. Boniface Case"). This case involved a claimant trying to establish easement rights against a neighbour's land, in part referable to an earlier easement grant and in part referable to a claim for a prescriptive easement (ie, an easement right based on long and unchallenged use of the neighbour's property).
  • RPM Farms Ltd et al v Laurence Jay Rosenberg et al (2019 MBQB 140, judgment given September 27, 2019, hereinafter the "RPM Case"). This case involved a property owner claiming prescriptive easements against several of its neighbours' lands.
  • Emil Stephen Delnea and Leslie Kim Delnea v Richard Vanhouwe and Michelle Vanhouwe (2019 SKQB 255, judgment given September 27, 2019, hereinafter, the "Delnea Case"). This (Saskatchewan) case involved a property owner claiming rights against its neighbour's property with reference to certain improvements which the property owner had inadvertently placed on the neighbour's land. The property owner's claim was based on Saskatchewan legislation which is substantially similar to sections 27 and 28 of The Law of Property Act (Manitoba).

In the St. Boniface Case, neighbour "A" ("Neighbour "A"") bought its property (Parcel "1") in east Winnipeg in 1998 and Neighbour "B" ("Neighbour "B"") bought the adjacent property (Parcel "2") in 1987. Neighbour "B" needed access over part of Neighbour "A"'s land (Parcel "1") in order to access a railway spur track so as to load and unload (from railway cars) product that Neighbour "B" produced, stored and distributed on and from its property. A predecessor in title to Neighbour "B" obtained a grant of easement from a predecessor in title to Neighbour "A'"s over Parcel "1" permitting the then required access. Subsequently, Neighbour "B" started making use of an additional portion of Neighbour "A"'s land (part of Parcel "1") for the purpose of allowing its trucks to make required turns to move in and out of Neighbour "B"'s property in order to load and unload Neighbour "B"'s products delivered to Neighbour "B" by way of the railway spur. Additionally, Neighbour "B"'s principal used part of Parcel "1" to park his personal vehicle and Neighbour "B" also used part of Parcel "1" for the storage of pallets and trailers. When Neighbour "A" discovered that Neighbour "B" was, in effect, trespassing on Neighbour "A"'s property, Neighbour "A" demanded that Neighbour "B" cease such trespasses. Neighbour "B" resisted and ultimately - after an unusually long period of time - the matter came before the Court for determination. Neighbour "B" defended its position with respect to Parcel "1" by pointing to the previously granted easement over Parcel "1", and, defended its right to use additional parts of Parcel "1" on the basis of continuous unchallenged and open use for a period in excess of 20 years (ie, Neighbour "B" claimed a "prescriptive easement"). The Court rejected the bulk of Neighbour "B"'s claims, based on the following reasoning:

  1. There was insufficient evidence of continuous (over a 20-year-plus period) use of the additional portions of Parcel "1" claimed. In particular, there appeared to be no evidence of meaningful use during the period 1984 to 1990.
  2. There was - in the Court's words, "… (a) lack of precision as to what portions of Parcel "1" were claimed (for a prescriptive easement)". The Court cited previous authority that "… to be capable of bearing a prescriptive easement, the land over which the easement is claimed must be capable of being described with some specificity".
  3. As to that portion of Parcel "1" covered by the older easement grant, the Court did recognize the binding nature of the easement grant previously obtained by a predecessor of Neighbour "B" against the title to Neighbour "A"'s land, but held that Neighbour "B" had unilaterally and in an unjustified manner expanded the "scope" of its easement over Parcel "1". Based on the evidence before it, the Court concluded that the easement grant's original purpose - as reflected in its wording - was to allow the occupant of Neighbour "B"'s property access to the rail spur located just inside the boundary of Parcel "1", for the purpose of loading and unloading trucks. The easement grant did not contemplate the expansion of Neighbour "B"'s business operations so as to require additional portions of Parcel "1" to facilitate Neighbour "B"'s ability to use very large transport trucks the size of which would have necessitated their movement onto and through much greater portions of Parcel "1".

In the RPM Case, the defendant's property (the "Defendant's Property") was adjacent to and bordered by neighbour "X" ("Neighbour "X"") on the north, the south and in part on the west sides of the Defendant's Property ("Neighbour "X"'s Property"), and additionally, on part of the Defendant's westerly boundary, by land owned by neighbour "Y" ("Neighbour "Y"", Neighbour "Y"'s property being hereinafter referred to as "Neighbour "Y"'s Property"). The Defendant claimed prescriptive easements in favour of the Defendant's Property over portions Neighbour "X"'s Property and over part of Neighbour "Y"'s Property in support of the Defendant's claims, and for the purpose of challenging same, witnesses were presented to the Court together with certain documentation including affidavit evidence. The most substantial difficulty encountered by the Defendant - and this would appear to be typical in cases of this type - was the fact that ownership of the various neighbouring parcels had, over the twenty-year period required to be established to validly claim a prescriptive easement, had changed from time to time. In fact, for a five- or six-year period within the alleged twenty-year period, one of the parcels had been leased by its owner to a tenant. It is often difficult to locate witnesses - or written confirmations of land usage - going back twenty years; some witnesses will never be located, others will have died and the memories of most of them - the further back in time you go - will have faded. As the Court observed, "… Here, the defendants seek to support their position by relying upon the hearsay evidence of unnamed people in the community …" In particular, there was insufficient credible unambiguous evidence of continuous usage, and, insufficient evidence that Neighbour "X" and Neighbour "Y" had, with knowledge of their own property rights (ie, that what the owner / occupier of the Defendant's Property was doing constituted trespasses) combined with acquiescence by Neighbour "X" and Neighbour "Y", key requirements to establish prescriptive easements. These particular holdings / observations by / of the Court are instructive:

  1. Courts should be wary of recognizing prescriptive easements because to do so will "… subject a property owner to a burden without compensation".
  2. No prescriptive easement can be held to have arisen where it is alleged to have commenced at a point in time where the servient tenement property was leased by a tenant. Specifically, "… a tenant may not grant a perpetual easement that would bind a registered owner after the expiration of the lease".
  3. One of the Defendant's claims for a prescriptive easement was based on the Defendant (predecessor in title to the Defendant's Property) having planted a tree line just beyond the northerly boundary of the Defendant's Property. The Court held that the mere planting of a tree line should not form the basis of a prescriptive easement per se.
  4. In part, the Defendant's prescriptive easement claims were based on the fact that the servient tenement owner had given "informal permission" for the use of its land. "Neighbourly permissions have not been recognized as creating a basis for a prescriptive easement". Usage of the servient tenement property owner's land by the owners / occupiers of the Defendant's Property "… was permitted by neighbourly goodwill rather than simply acquiescence". It was the Court's view that clearly, it is not in the public interest for the legal system to discourage neighbourly cooperation and the provision of neighbourly permissions.

In the Delnea Case, neighbours "X" and "Y" owned adjacent cottage properties. Neighbour "X" ("Neighbour "X"") had installed an underground septic tank which encroached upon the property of "Y" (Neighbour "Y"). Based on section 2 of The Improvements under Mistake of Title Act (Saskatchewan) (similar to sections 27 and 28 of The Law of Property Act (Manitoba), Neighbour "X" requested the Court to grant Neighbour "X" an easement covering the portion of Neighbour "Y"'s property that contained the tank. The Court observed that there were two primary requirements that had to be fulfilled before Neighbour "X" would be successful in its claim, namely, firstly that the tank was a "lasting improvement" on Neighbour "Y"'s land, and, secondly, the installation by Neighbour "X" was done under the "… mistaken belief that the land (was) (Neighbour "X"'s)". The Court concluded that although arguable, the evidence suggested that the tank was of a "permanent" nature, and that Neighbour "X" had genuinely believed that the tank was being installed on Neighbour "X"'s property. In this situation, the Court has two remedial options, one, to place a lien on Neighbour "Y" property in the amount that the improvement enhanced the value of Neighbour "Y"'s property, or, two, to permit Neighbour "X" to acquire ownership of the encroached upon land, provided that appropriate compensation is paid to Neighbour "Y". Clearly, the first remedial option was inapplicable in the circumstances of the Delnea Case. The second option was appropriate, but the Court was not provided with evidence dealing with the matter of the quantum of compensation which should go to Neighbour "Y" for losing a (small) portion of its property. The Court ruled that the parties would have a further short (30 days) period of time within which to address the issue of compensation. Unlike the outcomes of the St. Boniface Case and the RPM Case where a claim against a neighbour's lands was rejected, the encroaching Neighbour "X" was successful in claiming rights in the neighbouring property. However, this case illustrates the need for counsel to be fully prepared and to understand exactly just what sort of issues have to be dealt with and to craft a presentation of the necessary evidence accordingly.