Abandoned Use Of Easement Leads To Loss Of Backyard Parking Pad

• Published date: 01 December 2020
• Subject Matter: Real Estate and Construction, Conveyancing, Real Estate
• Law Firm: Gardiner Roberts LLP
• Author: Mr James Cook

In a densely populated city like Toronto, many older neighbourhoods contain tightly-packed homes separated by narrow easements which provide access to backyard parking areas. A recent decision of the Ontario Superior Court of Justice demonstrates that the prolonged failure to use such an easement may lead to its extinguishment as a legal right.

In January 2020, the Applicants in Kansun v. Diamantakos, 2020 ONSC 7193 (CanLII) bought a detached home in Toronto which contained two registered easements on the eastern and western sides of the property going from the front street between the houses to the backyard. The eastern easement was wide enough to accommodate a vehicle between the two houses, and it then traversed across the back yard to access the back yard of the home to the west, owned by the Respondents' family since the mid-1960s. The western easement was only wide enough for pedestrian use.

For some time, the Respondents' family used the eastern easement in order to access their back yard and park vehicles in their garage. However, by 1975 the garage was in disrepair and a fence had been erected between the two properties which blocked vehicular access to the Respondents' backyard from the easement. The eastern easement had become unusable by vehicles due to overgrowth and other obstacles, and neither easement was used by the Respondents to access the rear of their property after 1975. In 1990, a legal parking pad had been built at the front of the Respondents' property. The properties were converted into the Land Titles Act system in 2000.

Shortly before the Applicants purchased their property in 2020, the Respondents grew concerned over the potential loss of the registered easements. During the dead of night, the Respondents removed a portion of the fence; cut down trees at the boundary of the properties; removed garbage bins which were obstructing vehicular use of the easement; and parked a vehicle in their backyard (which could only be accessed through the eastern easement and across the Applicants' backyard). This attempt at a self-help resurrection of property rights proved to be unsuccessful.

After the Applicants completed their purchase of the property, they sought an Order discharging the easements pursuant to section 61(1) of the Conveyancing Law and Property Act, which provides as follows:

Where there is annexed to land a condition or covenant that the land or a specified part of it is not to be built on or is to be or not to be used in...