Lake Access Easements Should Be Carefully Scrutinized Prior To Purchase

• Published date: 07 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Gardiner Roberts LLP
• Author: Mr James Cook

In a dispute not uncommon to Canadian cottage country, the Ontario Court of Appeal recently addressed whether the owner of a non-lakefront property could drive a vehicle towing a boat over a right-of-way on their neighbour's property to access the lake Markowski v. Verhey, 2020 ONCA 472 (CanLII).

The appellant, Markowski, bought a property by Lake Waseosa north of Huntsville. The Markowski property was not directly on the waterfront but had a deeded right-of-way over the adjacent lakefront property owned by the Verheys, which included a beach. The right-of-way was described in the deed as being "for all the usual purposes, in, over, along and upon" the Verheys' waterfront property.

The Verheys had no issue with Markowski using the right-of-way to access Lake Waseosa for leisure activities such as swimming and canoeing, but they objected to Markowski's use of the right-of-way to bring boats to and from the shore using a motor vehicle. The Verheys took the position that the use of the right-of-way was limited to canoes and other small boats that could be portaged across the right-of-way.

Predictably, litigation ensued. Since the right-of-way (or "easement") was contained in the written deed for the properties, the Court of Appeal focused on the precise words used to create the easement. In the Court's words: "Where an easement is created by express grant, the nature and extent of the easement are to be determined by the wording of the instrument creating the easement, considered in the context of the circumstances that existed when the easement was created," citing earlier decisions in Fallowfield v. Bourgault 2003 CanLII 4266 (ON CA), at para. 10; and Smith v. Morris, 1935 CanLII 56 (ON CA).

Unfortunately for Markowski, the wording of the easement for "usual purposes" did not specifically describe whether "usual purposes" included traversing the right-of-way with a car towing a boat. This wording can be contrasted with more specific language in other cases describing the purpose of a registered lake access easement, such as for "bathing and launching a motorboat" (see e.g. Medeiros v. Baldassarra et al., 2019 CarswellOnt 19345, 2019 ONSC 2682). Accordingly, the Court had to examine evidence of the historical use of the right-of-way to determine what "usual purposes" actually meant.

The Court of Appeal noted that an express easement may also include unspecified "ancillary rights" which are reasonably necessary to use or enjoyment the right-of-way. In...