Question:
What do you think can and can’t be done with the highlighted area in the picture? For example, can a hose or recycle bins or garden shed be stored as long as the mutual drive is not being encroached on?
Answer:
If the property has always been registered in Land Titles then, the respective parties can use the yellow areas for any purpose they wish as long as it doesn’t interfere with the use of the mutual driveway.
Assuming that the property is in the Registry system, then, prescriptive rights may have been acquired.
If the property has recently been transferred to Land Titles, then any prescriptive rights which were vested in Registry, are grandfathered and will continue.
Consider the following situation. Owner A is on the left, Owner B is on the right. The property was transferred to Land Titles in 2014, eight years ago. That means that we have to go back to 2014 in order to begin to determine the rights of the parties. The prescriptive period is 20 years. That means the relevant period under consideration is 1994 to 2014. For prescriptive rights to accrue we need the use to be 1) open, 2) continuous, without interruption, and 3) without permission. Can something be proved by either party in that regard?
Imagine that the Owner of property A drives his vehicle in a forward direction up the mutual driveway and into his garage. Then, when leaving, he reverses, backs up on a 90 degree angle into his own backyard where there is no mutual driveway behind his own house. Then, he pulls forward in order to head forward down the mutual driveway, but in doing so, his vehicle encroaches upon the yellow highlighted area of property B. To keep it simple, he does this for 20 years, from 1994 to 2014. No one ever mentioned anything to him, that is, no one (from property B) ever said “yes”, which would constitute permission, or “no” which would interrupt the 20 year period. So, at the end of the 20 year period, the Owner of property A has acquired the right to trespass over the yellow area forever. That right is passed on to the new Owners under the Conveyancing and Law of Property Act (Ontario). That would prevent the Owner of property B from installing a garden hose or storing garbage cans there, if they were to interfere with the prescriptive rights acquired by the Owner of property A
It can be complicated, and it’s often difficult to find witnesses to prove one case or the other.
Note: the area referred to as highlighted in yellow is the area behind the house not covered by the mutual driveway.Brian Madigan LL.B., Broker