Questions:
1) if after using the land of Neighbour A for about 20 years to launch his boat in the lake, the property of Neighbour A gets sold. The easement was not registered and the property was in registry system. Now with new owner and property registered in land titles would Neighbour B who was using neighbor A’s property be able to use it again to launch his boat if the new owner says no and he iwouldn’t allow it?
2) Neighbour A plans to gate this access to the lake for Neighbour B who doesn’t have access any other access to lake. What do you think the legal proceedings would allow? In this case Neighbour B can access his property by land and access to water is not necessary?
Answers:
The facts are insufficient to permit any definitive answers here. Generally, there are some matters that must be considered:
- Assuming 20 continuous years of open and uninterrupted use, an easement obtained by prescription may have been acquired. This has to be confirmed by a Court Order. Consent or Refusal starts the 20 year clock all over again. The 20 years needs to be reached while the property is still in Registry. 19 years and 11 months would not be enough.
- Now that the property is in Land Titles it’s too late. Access by necessity only arises if both properties were originally owned by one person.
- In “real life”, your scenario is somewhat more complicated because there is a 66 foot road allowance between the lake and all properties that may be abutting. So, this needs to be taken into consideration as well.
Brian Madigan LL.B., Broker
Comments 2
For the past 28 years our neighbour has allowed us to pass over a small piece of his property to reach the 66 ft. shoreline allowance and then on to the lake where we now have a beach, docks and seating area. They are now transitioning to a Assisted Living facility and are going to sell the cottage. Your thoughts on what our options are to continue this use is appreciated?
Thank you.
Author
The first step is to determine the registration of your property and the neighbour’s property. Are they both in Land Titles? If so, how long? What was the date of transfer?
The next issue is to determine whether you have acquired any possessory or prescriptive rights. However, if your neighbour consented, that would thwart any such rights from accruing.
The result is that you have three options:
1) Buy your neighbour’s property,
2) Buy a portion of the property,
3) Buy an easement over the property to continue with access.
The best result is to buy the neighbour’s property in its entirety. If you do that, you will want to use a different name so as not to “merge” the two properties.