There are not a lot of these around, but they do arise on occasion. When?
When the property increases in value, that’s when!
This is a case that took place in the early 1970’s near Calgary. Property was conveyed. The title to an access road was to be dealt with. It wasn’t. Years went by and nothing took place,
Then, of course, the values soared. The adjacent property was to be developed for a subdivision. That’s when everybody became excited about the road.
Alberta Court of Appeal (Kew Ridge Road Utility Ltd. v. Miles, 2016)
Here are some comments made by the Appeal Court: The issue is whether the road meets the common law requirements of a public highway.
The judge found it did not.
He also concluded that there was no easement arising by express reservation because the caveat did not expressly protect the road.
He did, however, find that there was an implied easement by necessary implication.
He was of the view that Peel (the Seller) and Schiele (the Buyer) both appreciated full well that the road was reserved to allow access to the north-west and south-west property owners and that the respondent Ronald Clarke enjoyed an implied easement by necessity (having found that the alternatives suggested by the appellant were not feasible).
…….. On the basis in part of the foregoing, the trial judge found that Peel sold the north-east quarter to Schiele with the intention that the road be reserved to allow the north-west property owners access to their property.
The judge also took note of the fact that Peel had previously extended the road into the south-west quarter for those owners to have access:
“…I further find that Schiele was aware of Peel’s intention and also found himself bound when he bought the land by that same feeling to ensure his neighbours continued to enjoy their access.
In other words, the Court finds evidence of this precise understanding between Peel and Schiele at the time of their transaction…I am satisfied that it is indisputably obvious that Peel and Schiele intended to create this easement and the north-west and south-west quarter residence knew of this and acted upon it for decades prior to the [appellant] coming along.
The road connections in use were and are obvious to anyone who cared to look.
………. We conclude that the trial judge appreciated full well that:
1) an easement of necessary inference must be based on a common intention between owners of the affected properties, and
2) necessary inference of that common intention from the circumstances at the date of the grant.
In addition, the easement must be obvious to observers.
So, the evidence was that both the Seller and the Buyer intended to create a road, but they just never got around to it. Forty plus years later, it’s too late to complain.
The decision in this case was that it was a reasonable conclusion based upon what took place at the time of the initial agreement.
It is not an “easement of necessity” which is a separate matter entirely.
Brian Madigan LL.B., Broker