May 21, 2021 | Christianah

An easement can simply be defined as the legal right for a person to use or access another’s property for a specific purpose. A prescriptive easement is an easement that exists due to a lengthy and uninterrupted use of that legal right. Due to the burden an easement creates on the servient owner’s land without compensation, as stated by Cory J.A. in Henderson v. Volk, 1982 CanLII 1744 (ON CA), Courts are usually wary of finding a prescriptive easement in respect of a property. In today’s blog post, we would examine the 2021 case of Mighton v. Palmer, 2021 ONSC 2275 and the elements Courts would look at to determine whether a prescriptive easement exists.

Mighton v. Palmer

In this case, the applicant sought a prescriptive easement over a narrow sandy footpath that led to the Eastern shore of Lake Huron. Although there was an alternate route for the applicant to get to the Lake, it was a longer walk.

To establish a prescriptive easement, four essential characteristics must be present, as established in Bailey v. Barbour, 2016 ONCA 98 at paragraph 56:

• there must be a dominant and servient tenement
• the dominant and servient owners must be owned by different persons
• the easement must be capable of forming the subject matter of a grant
• the easement must accommodate the dominant tenement, that is, must be reasonably necessary to the better enjoyment of the dominant tenement.

A prescriptive easement can arise under S. 31 of the Real Property Limitations Act, R.S.O. 1990, c. L.15 or under the doctrine of lost modern grant. For it to be established under S.31, there must be a continuous, uninterrupted, peaceful use without permission, for the period of 20 or 40 years immediately preceding the assertion of the claim. Under the doctrine of lost modern grant, the use of the easement does not have to exist before the assertion, but can be any uninterrupted period of 20 years or more. This was laid down in Kaminskas v. Storm, 2009 ONCA 318 (CanLII) at paragraph 31.

In this present case, since the property was converted to Land Titles in 2007, the applicant had to show that the prescriptive easement had existed for 20 years prior to 2007.

The Court held that it was apparent that the applicant has used his property as a summer cottage for at least 20 or more years before 2007. It also held that reasonable access to the beach and Lake Huron would significantly contribute to the normal enjoyment of the cottage. The Court concluded that the shorter the walk to the beach, the more enjoyable it would be to use the cottage, considering the following factors:

• The time it would take to walk from the cottage to the beach and return,
• The time and difficulty it would take to transport objects, like beach chairs, floating apparatus, lunch baskets, coolers, books, electronic devices and beach umbrellas, etc. to the beach and back.
• Access to washroom facilities.
• the increased importance of these factors if young children or older people are involved.

The claim of easement rights was held to be one of more ‘utility and benefit to the dominant tenement’ than ‘mere recreation and amusement’ (Justice James citing Barbour at paragraph 43). The Court also held that the owners of the servient tenement were aware that the applicant and other property owners in the area used the path in question to access the beach. Therefore, the applicant’s use of the path was found to be continuous, uninterrupted, peaceful, accessed without permission, and was reasonably necessary for the better enjoyment of the applicant’s cottage, the dominant tenement.

In conclusion, before a Buyer purchases property, it is extremely important to determine if there are easements which are established over certain parts of the property to avoid any dispute over such rights.

If you have any questions regarding easements or any real estate transaction, you can book a free consultation with Northview Law on this link, or contact us at 416-639-7639. We look forward to hearing from you soon.