Murray-Leung v. Dyck (2026 ONCA 204)
The Ontario Court of Appeal looked at the issues related to a driveway and the rules related to the rights associated with long term use.
Neighbour disputes are common but this one is a strong reminder that long-term use of land can create permanent legal rights, even without anything in writing.
The Situation
Two neighbouring properties in Hamilton:
- 56 Garner Road (front lot)
- 58 Garner Road (rear lot)
The rear property had only one way in and out, a gravel driveway that partially ran over the front property.
For decades, the owners of 58 Garner used that driveway without issue.
That changed in 2017 when new owners of 56 Garner:
- Objected to the use of the driveway
- Tried to build a fence
- Placed objects (cars, stones, ladders) that blocked access
The Legal Fight
The rear owners went to Court claiming:
- Adverse possession (ownership), or alternatively
- A prescriptive easement (a legal right to use the land)
Ontario Superior Court ruled:
- ❌ No adverse possession (10 years of ownership)
- ✅ Yes to a prescriptive easement (20 years of use)
The front owners appealed.
Court of Appeal Decision
The Ontario Court of Appeal dismissed the appeal and upheld the easement.
Evidence:
1. Long-Term Use Was Proven
- Evidence showed the driveway existed and was used since at least 1977
- Aerial photos and witness testimony confirmed it stayed essentially unchanged
2. No “Burden Shift” Error
- Once long, open, uninterrupted use is proven, the law presumes acquiescence
- The burden shifts to the other side to prove the use was by permission
- The front owners could not do so
The Legal Test (Simplified)
To establish a prescriptive easement, you need:
- Use of another’s land
- Without permission (no consent)
- That is open, continuous, and uninterrupted
- For 20+ years (before Land Titles conversion)
- And reasonably necessary for the property’s use
All elements were met in this case.
Real Estate Considerations
1. Long Use Can Beat Legal Title
Even if you “own” the land on paper, someone else may have acquired rights over it through long-term use.
2. Access Is Critical
Where a property has no other access, Courts are far more likely to protect longstanding use.
3. You Can’t Just Block It
Building fences or placing obstacles won’t defeat an established easement and may lead to liability.
4. Due Diligence Matters
Buyers should always:
- Inspect for shared driveways or encroachments
- Ask about historical use
- Consider a survey
Conclusions
If a neighbour has been using part of a property openly and continuously for decades, that use may become a permanent legal right binding on future owners.
For a prescriptive right 20 full years is required and that has to take place before the property was transferred from the Registry system to Land Titles Qualified. Most of Ontario has now been transferred.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com