Question:
The Owner of a property has been sharing the neighbour’s well since the 1970’s. The property is now to be sold.
There is no “agreement” in writing. The neighbour doesn’t want to sign anything and the owner is unsure of his rights. All of this makes the Buyer nervous.
Do any rights arise from long term use?
Answer:
It takes a long time for a prescriptive easement to take place, 20 years of uninterrupted use, without permission or consent at any time. The properties would both have to be in Registry and not Land Titles for the full 20 years. A good defence from the neighbour’s perspective would be: “I agreed”. That would be fatal to the claim.
Oddly, the basis of the case is “theft”, and you cannot steal something from someone who gave permission. This is why there aren’t too many of these types of cases.
Understanding adverse possession and prescriptive easements is somewhat counter-intuitive. Ordinarily, morals and ethical behaviour are rewarded. Here, it is the exact opposite. Theft will be countenanced as long as it was a while ago, in the case of adverse possession 10 years, and in the case of prescription 20 years. To be successful, you have to prove that you stole something. The Courts will condone the behaviour and authorize the thief to steal, provided that the true owner can be shown to be a procrastinator.
Brian Madigan LL.B., Broker