Home Owners Ordered To Remove Pool Built Over Municipal Easement

• Published date: 18 January 2021
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: Gardiner Roberts LLP
• Author: Mr James Cook

Home buyers would do well to ensure that their local municipal by-laws and easements do not prohibit their development plans before they embark on any major construction or renovation projects. In a recent case, the Ontario Court of Appeal affirmed that home owners were required to remove a pool and associated amenities which they had built on top of a municipal easement.

In Oakville (Town) v. Sullivan, 2021 ONCA 1 (CanLII), the Appellants bought a property in Oakville, Ontario, and subsequently built a swimming pool and surrounding deck, platform, and other amenities behind their house. The pool and amenities extended over a ten-foot strip of land which was subject to a registered easement held by the Respondents, the Town of Oakville and Oakville Hydro Electricity Distribution Inc. ("Hydro").

The subject easement had been registered in 1972, and stated that the owners of the Appellants' property maintained "the right to use the surface of the said land for any purpose which does not conflict with the Town's rights hereunder and specifically excluding the planting of any tree and the erection of any building or structure."

While the Appellants knew about the easement prior to closing their purchase, they apparently believed that the easement had been abandoned or never used. The only current use of the easement was as an underground conduit housing a hydro cable providing power to a neighbouring property. Over the years, several other structures had been erected within the easement with the Town's approval, including a carport and part of the house. Two large trees are also within the easement. The Town's approval was not sought, however, before the pool and amenities were built in 2014.

In 2018, the Town and Hydro brought an application for a declaration that the Appellants' pool and amenities encroached upon the easement and for an order requiring their removal. The application judge ruled that the pool and amenities actionably encroached upon the easement because they contravened the express prohibition against erecting a building or structure. He also ruled that the equitable doctrine of proprietary estoppel did not prevent the Town and Hydro from enforcing their rights under the easement. As a result the Appellants were ordered to remove the pool and amenities, to remediate damage to the easement, and pay costs to the Town and Hydro for the legal proceedings in the amount of $50,000.

On appeal, the Appellants argued that the application judge...