Access Easements: What to Do if you get Walled In to (or Out of) Your Property

As a real property dispute resolution lawyer, I'm often consulted by folks who own property either subject to an easement or in whose favour an easement does or should exist. An easement is generally a right to do something concerning a piece of land, that's short of a right to possess the land. 

An easement is usually set up to benefit an adjoining piece of land, and will "run with the land" to successors in title. Perhaps the most common form of easement is a right to traverse land in order to access adjacent land. Access easements are especially common in cottage situations, where water, rocks, woods and remoteness may make other road access difficult. 

Sometimes a woodlot owner or farmer will sever small waterfront vacation lots off a larger lot, keeping the back woods or fields for his own harvesting use. The key to making this arrangement work is often the construction by the lot vendor of a common shared road from a public highway through the remaining woods or fields, to connect up with the cottages. What's supposed to happen from a legal perspective is that each of the cottage lots has an access easement registered in its favour against the parcel of land that the access road crosses. 

Problems can arise when those easements don't get formally registered on title, or when a new owner buys the larger parcel and fails to maintain or attempts to block the access through it. Problems can also arise if all of the cottage lot owners are supposed to jointly contribute to the upkeep of the access road, and one or more of them repeatedly refuses to pay. 

A court application might be necessary to establish and enforce access rights. A court action could also be required to collect the maintenance debt for the non-payors. 

In Ontario, access "applications" go before the Superior Court of Justice, and a full blown "action" (which can involve drawn out discoveries and considerable expense) may not be necessary as the Rules of Civil Procedure permit a much simpler "application" to determine questions of rights in land. For non-payment of maintenance costs, an action is necessary (as it involves the collection of a money debt), but it could proceed before the relatively inexpensive Small Claims Court so long as the claim doesn't exceed $25,000 in value. 

While an access easement clearly registered on title is the clearest of rights since all the public has notice of it, the holder of such a right still might wind up in court seeking an injunction to prevent blocking of the access if someone further up the access road decides to erect a locked gate or plants trees in the middle of the road. However, you shouldn't be deterred even if you don't have an easement registered in your property's favour if you and others acquired the property believing there was an access easement, and in fact have been regularly using such a road/driveway/trail/path for access since you purchased it. 

An "easement by implication" can be established in court if you can present evidence that you purchased your property thinking you had an access easement because the access road that's now in dispute in the obvious (and perhaps sole) way of accessing your property, and it's clear the original purchaser (and vendor) likely believed the same thing. These easements by implication don't require that you establish adverse possession over a period of many decades. And they don't even require absolute "necessity" - meaning no other way of accessing your property - since with waterfront property it might be possible for your opponent to claim that you're able to access the property from the water by boating into it. 

If a court does find that you've got an easement by implication, you should be able to register it in your local land registry office, thus hopefully avoiding future doubts over its existence by subsequent purchasers of your property or the property over which the easement passes. 

NEIGHBOUR LEGAL DISPUTES: FIVE TIPS TO MINIMIZE COST AND HASSLE

Credit: "Neighbors (2013) Poster" by Source. Licensed under Fair use via Wikipedia

If you go by the number of court cases I'm involved in helping folks defend themselves against neighbour actions or lawsuits over fences and shrubberies, you'll realize that the old adage "good fences make good neighbours" is patently false. I've got lots of examples of neighbours taking great offence when one neighbour decides to legally erect a fence along (but usually not even resting on) property lines. Other cases arise when a neighbour decides to trim a tree overhanging her property, or move a couple of shrubberies, or exercise a longstanding right of way over a neighbour's property to get to her own landlocked property.

In a perfect world, any of these actions would involve neighbours calmly and politely talking out their concerns, and not having to resort to hiring me to go to court for them. But of course we don't live in that mythical perfect world. People hold grudges and nurse petty grievances. People act unreasonably, even when their actions and reactions aren't logical and aren't in their own financial and human relationship best interests.

You might think people would carefully consider whether spending $10,000 (or even $40,000) fighting over a shrubbery, and in the process totally poisoning a relationship with a neighbour whose help you might actually need in the future, was really worth it. But we all know that hearts rule rather than heads, and that emotions get the better of people time and time again, even when what they are doing really makes no sense.

And even if sense does later enter into the equation, once they are $10,000 down the legal litigation superhighway, it can be very difficult to put the brakes on that Litigious Lexus. Far easier to keep the pedal to the metal, and burn through another $10,000 in lawyer gas, and then another $10,000.

I'm happy to say my clients don't start frivolous litigation, or take ridiculous actions against their neighbours. I'm not speaking as someone with blinders on. Rather, I just seem to attract those who are getting the short end of the stick. And I refuse to represent anyone who won't listen to at least some reason, because they won't be clients whom I can help. They're still entitled to legal representation, I just don't have to be the one providing it.

So what's to be done when you're on the receiving end of a property neighbour legal dispute in order to minimize cost and hassle?

1. Try to deescalate the dispute before it gets to court. I know this is easier said than done, but many believe court will offer a quick and inexpensive or at least definitive fix to the problem, and usually none of those assumptions are correct. Disputes can drag for years in court, at huge cost, and then the court might not even offer a ruling on all the issues in dispute.

2. Try to keep the dispute in Small Claims Court, where your legal fees will be much lower because the process is much quicker. Unfortunately, Small Claims Court won't determine questions of rights in land itself. It only determines questions of money owed - such as from cutting down a prized tree that the neighbour didn't have the right to cut.

3. Don't try to represent yourself in court on the dispute. I'm not making this suggestion from the perspective of a lawyer who earns his living from clients who hire me to go to court for them, but rather as a person who sees countless courtroom disasters caused by smart people trying to navigate the highly complex legal system by themselves. No one tries to do open heart surgery by themselves. No one with any sense even tries to set a broken bone by themselves. So why try to do the legal equivalent by yourself? The patient is going to die, or at least wind up far sicker than he was before the start of treatment.

4. Keep scrupulous records of all events and interactions with the neighbour and authorities over the issue. Recording names, dates, places and detailed descriptions, including taking photos (and maybe video) are needed. These records will be key to ensuring your evidence of your side of the story is believed in court.

5. Be constantly considering what a reasonable settlement offer would look like right from the start. "Reasonable" means not just to you, but to the neighbour. What's going to be attractive to the neighbour, but still get you at least some of what you want? Because you really, really want to avoid going to court in such matters, and really want to shorten as much as possible the time such a dispute spends dragging through court.