Mutual Driveway or Just a Lane?

(Ontario Real Estate Source)

The Toronto Star recently ran a couple of articles which concerned neighbours and a driveway dispute.

The first was written by Katie Daubs entitled “Driveway Dispute Divides Neighbours”.

The second was written by Brendan Kennedy and Katie Daubs entitled “Driveway Spats Bedevil City Neighbourhoods”.

Both articles were well-written and point to some of the dangers associated with the mutual driveway situation.

Here are the basic facts as outlined:

• Two properties share a common boundary
• The Perkovics live to the west
• The Roslins live to the east
• There is a narrow strip of property between the two houses
• 25% is owned by the Perkovics
• 75% is owned by the Roslins
• the Perkovics are long time residents and have used the strip with prior owners of the Roslin property as a mutual driveway
• the Roslins are new to the neighbourhood and have closed down the mutual driveway

When the Roslins moved in recently, they shut down the mutual driveway. They apparently insisted upon their legal rights. They demanded that the Perkovics stop trespassing.

Naturally, this is very unfriendly and not particularly neighbourly. The question is whether or not this is legal.

I was quoted in the second article as follows:

“Shared driveways are second only to boundary disputes as far as reasons why neighbours sue each other”, said Brian Madigan, a real estate broker who practised law for 25 years.

“What you don’t want is a bad neighbour.”

So, following the publication in the Star, I received numerous inquiries about the law related to mutual driveways from real estate colleagues, real estate students and strangers.

Sorry, I don’t have enough information here to express an opinion. The relevant facts are not available. The sympathetic information about the matter, the people and the neighbours seem to be available, but nothing which would point me in one direction or the other related to the actual determination of this dispute, from a legal perspective. And, that’s the information that a Court would look for.

There were voluminous comments posted on the Star website, perhaps 120 or more at last count, all substantially favouring the Petrovics over the Roslins, but none of those individuals would have been possessed of any of the relevant facts. Nevertheless, it’s interesting to see so many firmly held opinions. But, the opinions are all based upon sympathy and emotion.

Let’s have a look at what’s missing. This is important if you are a homeowner, home buyer or real estate agent advising the parties about their rights, that is, either neighbour on a sale or purchase of their property, or a prospective purchaser of either property.

First, it was clear that there was no actual registered mutual driveway, otherwise, there would not have been a dispute.

How do you get a legal mutual driveway:

1) by deed, where the common owner of both properties registers it against the title,

2) by mutual agreement between the two neighbours, creating side by side easements to form a mutual driveway, which document is registered against the title, or

3) by Court Order confirming that certain prescriptive rights have development by reason of long usage, which Court Order is registered against the title.

I hope you noticed the common theme: documents that were registered against the title.

In this particular case, there was nothing registered, absolutely nothing, at all.

Bob Aaron, a noted Toronto lawyer who practices in the field of real estate law, suggested that the parties instruct their respective solicitors to negotiate a mutual driveway easement. Such a document would fall under #2 and would offer a perfect solution, assuming, of course, that both parties agree.

Most of the comments offered solutions by way of squatters’ rights, adverse possession and prescriptive rights. Here, some commenters are on the right track, but remember one thing, until the matter is resolved by the courts, there is no Court Order that can be registered, so it’s still anybody’s guess.

Let’s deal with the land registration issue. In Ontario, there are two systems of land registration:

1) Land Titles system,
2) Registry system.

The law is different under these two systems. Two legal doctrines at common law, namely adverse possession and prescriptive rights do not apply under the Land Titles system, but they still do, under the Registry system.

Ontario has commenced a program initiative to transfer the titles of all properties from the old system (Registry) to the new system (Land Titles). This initiative has been underway for more than two decades.

At some point in time, within the last 10 years the two properties on Glenlake Avenue in the High Park neighbourhood of Toronto were transferred into the Land Titles system. For discussion purposes only, since I do not have the facts, let’s assume that it was 1 May 2005. Effective that date, the law changed dealing with that strip of land between the two properties. No more adverse possession, and no more prescriptive rights!

The Land Titles changeover is into “qualified land titles”. That means that any rights which accrued by way of adverse possession or prescription would continue. Effectively, pre 1 May 2005 rights continue and no new rights can accrue after 1 May 2005 because the law changed.

That brings us to the question of whether the Petrovics had acquired any rights by way of adverse possession or prescription prior to 1 May 2005, because those rights would be “grandfathered”.

Adverse possession deals with ownership and the relevant time period is 10 year. Prescriptive rights are other property rights, less than full ownership. Since, those types of rights might not be easily recognized, the time period is 20 years.

What we are talking about is the right of access, the right to travel over a portion of someone else’s property, that is, a right in the nature of an easement which would take 20 years to accrue. No one here is claiming full ownership!

The additional information that we have is that the property subject to the discussion is 25% owned by the Petrovics and 75% owned by the Roslins. For the sake of our discussion, let’s assume that we are talking about a 10 foot strip of land. In Toronto, most mutual driveways would be 8 to 10 feet in width. There are frequently, a few projections including chimneys and bay windows and bow windows that encroach onto the drive. This limits navigation.

Bob Aaron was quoted as saying:

“…….tens of thousands of Toronto homes were built before people had cars, and nobody bothered to create deeds for driveways, let alone mutual ones.”

This neighbourhood was developed at the turn of the century. In all likelihood, the property was simply used as access to the rear by both parties. There were no cars, and there were no mutual driveways created. Consequently, if a mutual driveway were to exist, or even simply rights on the part of the Petrovics to trespass, then those rights would have to fall within the rules related to the establishment of prescriptive rights.

What do you have to prove to establish a prescriptive easement?

You must prove that:

1) you had a use,

2) that use continued for a period of 20 years,

3) the use was uninterrupted,

4) the use was open, flagrant, and there to be seen,

5) the use was not secret, hidden or surreptitious,

6) such use occurred without the consent of the other party, and

7) such use was undisputed.

We need to deal with a further assumption here and that is the date of commencement. Let’s assume 1 May 1905. That gives us 100 years (a full century) to work with. We might be OK in 1905 for a maintenance easement, that being carrying ladders around the property and so on, but, we really need to wait perhaps several decades before anyone there, had a car. The first maintenance easement could have been in place by 1925. The vehicle access use would have been much later. That use involves travel over that strip of property by car not simply walking around to the back with a ladder to be used for maintenance, periodically.

A reasonable easement for vehicle use would be travel, as required, several times per day, without interruption. A separate and distinct use would be the right to park a vehicle for extended periods of time. That would indeed be very difficult to prove, and most mutual drioveway agreements do not permit parking.

Now, we arrive at the computation of the time period. We need 20 years, continuous. Nice neghbours present a problem, a real problem. They might just consent and let you travel over the property. That’s not good. You don’t get “trespassing rights” this way. You had permission. What you really needed was someone to say “no”, but, you ignored that “refusal” and went ahead and trespassed anyways. That’s how you get prescriptive rights!

And, you have to remember what this is all about. It’s the right to tresspass. If you trespass on someone’s land, the Courts will prevent you. However, if you can prove that you trespassed for 20 years, the Courts will tell the property owner that it’s too late. That’s because of the Statute of Limitations. Courts don’t favour plaintiffs who come to Court after 20 years. You had 19 years plus to stick up for your rights, now, it’s simply too late. So, it’s important to bear in mind that it is the person claiming the prescriptive easement who is the original trespasser and wrongdoer. The adjoining property owner is the victim. Sometimes, that little bit of history refocusses the dicussion in terms of sympathy.

There was some information to the effect that the Petrovics used the driveway for a period of 33 years in order to obtain access to their garage at the rear of their residence. It may then, be reasonable to assume that they moved into their property in 1977.

A 1959 survey disclosed no registered mutual driveway.

Can the Petrovics come up with 20 years useage? Maybe they can. They have 33 years themselves. They were driving a car at this time and parking it in their garage. Did any prior owner of the Roslin property give consent? Did anyone say: “it’s OK to use the drive”. That would be very bad news. Each time, there’s consent, the 20 year period starts over again.

Even if the Petrovics can’t prove that the 20 years occurred on their watch, they have the advantage of prior owners. By the early 1950’s most households had cars. Did a prior owner of the Petrovic property have a car and use the drive? Did they use it from 1950 to 1970? Did they use it without permission? Remember, if anyone said yes, then we have to start counting once again.

And, there’s one other problem. You can’t have anyone refuse and then commence legal proceedings. That starts the 20 year period over again too.

Once you have a successful 20 year period, the Court will likely grant an Order confirming the existence of those prescriptive rights. And, it would take another 20 years to lose them in the same way. So, effectively any 20 year period of vehicle use in the last century will do. But, that’s hard to prove! Where are the prior owners? Who lived there? The early owners and neighbours are likely deceased. This is a difficult and challenging problem, particularly if you need to retain solictors to undertake an investigation for you are hourly rates in the $300.00/hour range.

My point here is simply that this is a very complex issue. The mere fact that 120 plus individuals by and large support the Petrovics is not helpful. It simply demonstrates the extent of the misinformation out there.

For purposes of illustration, I had to make up a number of facts so that we could appropriately review and consider the issues. But, those are not the true facts in the Petrovic-Roslin dispute. I just made them up.

However, consider the issues as a homeowner. Take Bob Aaron’s advice and register an easement if your neighbour will agree. This is an excellent and cost efficient solution.

Think about this matter as a home buyer. Are you getting a mutual driveway? Is it registered? Is it in dispute? What happens if a new neighbour moves in?

Think about this matter as a real estate agent. Don’t put “mutual driveway” on the listing unless it’s registered. And, if you are acting for the buyer, write something into the offer concerning the fact that a mutual driveway is included, otherwise, your client might have to accept a mess like this.

Justice is blind. The rule of law will prevail. There is no extra sympathy for an elderly couple. There is no punishment available if you simply want to enforce your own legal rights.

This may not turn out to be a mutual driveway case. It might just be a laneway between two houses, two and one half feet for the Petrovics and seven and one half feet for the Roslins.

Brian Madigan LL.B., Broker is an author and commentator on real estate matters,