Mutual Driveways: Ownership, Use and Maintenance

So,  just what is a mutual drive and how does it work?

You will probably find that mutual driveways are located in downtown areas that might originally have been the first suburbs. They were often put together in the 1920’s, 30’s, or 40’s. The lots are often relatively narrow, perhaps 25 feet in width and the lots are not too deep, usually 100 feet or sometimes less.

Now, with a 25 foot wide lot, you probably have a 3 foot setback on the other side of the house. This leaves 22 feet for the house without a driveway. You basically need about 10 feet in width for a driveway, so that would take you down to 13 feet for the house. That’s awfully narrow. So, why not have two neighbours each contribute 5 feet towards a shared driveway? This way, there will be 18 feet left for the house and that’s workable. You will also find that one builder will likely own both lots, so setting up the right documentation will be easy.

So, we need 5 feet of width from each party. We probably only need the driveway to run back 75 feet, because now you are behind the house and each neighbour can safely turn into their own respective backyards where they may or may not have constructed garages.

Let’s assume that Bob the builder purchased two lots, in plan 231, being 7 and 8. He then conveys each of the two lots to different buyers, John Smith and Wilma Telford.

Lots 7 and 8 are side by side, both located on the north side of Main Street. Lot 7 is to the west of Lot 8.

Assuming the property is registered in the Land Titles office, the abstract might read something like this:

Lot 7 Plan 231

John Smith is the registered owner in fee simple of Lot 7 Plan 231,

Subject to a right of way over the easterly 5 feet, commencing at the south east corner of lot 7, proceeding in a northerly direction along the boundary between lots 7 and 8, a distance of 75 feet,

Together with a right of way over the westerly 5 feet, commencing at the south west corner of lot 8, proceeding in a northerly direction along the boundary between lots 7 and 8, a distance of 75 feet,

The aforesaid rights-of-way comprising a mutual driveway for the benefit of the respective owners of lots 7 and 8 for ingress and egress by pedestrians, and motor vehicles, such mutual driveway to be maintained from time to time as required by the owners of Lots 7 and 8.

So, what does that basically mean?

John Smith is the registered owner of Lot 7. He pays the property taxes on Lot 7. However, he has offered up 5 feet of property a distance of 75 feet along the east side of his property as the servient tenement in a mutual driveway. But, he picks up the adjacent 5 feet on the west side of Lot 8 as the dominant tenement.

When it comes to maintenance, he is solely responsible for Lot 7, but his neighbour, Wilma Telford is jointly responsible for the maintenance of his side of the mutual driveway. Similarly, he is obligated to repair the 5 foot by 75 foot over property that Wilma has contributed to this shared drive.

So, if there are particular repairs required to one side or the other, it doesn’t really matter. They both share equally in the costs of repair and maintenance of the entire “mutual driveway”.

When it comes to use, you will notice that it says “ingress and egress”; that means “coming and going” it doesn’t mean “parking”, not even for 5 minutes.

You will also see that the use is restricted to pedestrians and motor vehicles. This does not mean “boat trailers”. You will of course appreciate that there could be many possible disputes between neighbours concerning the use of a mutual driveway.

Let’s assume that it snows bigtime at 11:00 pm. The snow plough comes by at 11:30 pm and fills in the entrance. Who’s going to shovel it out? The answer is rather simple. The first one who needs to go out! That’s who. This snow dumping by the municipality close to midnight was on municipal property. The mutual driveway starts another 10 or 15 feet away. So, there’s actually no obligation upon either party to deal with snow on municipal property. Although, there is likely to be a municipal by-law requiring owners to clear the sidewalks (owned by the municipality) in front of their homes, it won’t say anything about the snow piled up on municipal property blocking access to your mutual driveway.

Many of these types of problems will just have to be worked out between the two parties. If John is up and 7:00 am and needs to leave by 7:45 am, then he’ll have to clear it himself. Although, Wilma is supposed to help clear the mutual driveway itself. This is not much help if she is still in bed.

Now, let’s consider some of the problems at the back of the house. Let’s assume that John has a two car garage and Wilma does not. Can Wilma store her boat and trailer in her backyard? Is John allowed to use Wilma’s large parking area behind her house and north of the 75 foot drive to back up his car and drive forwards out of the driveway? The first problem is simple. Wilma is not allowed to use to mutual driveway for that particular purpose. But, if she could get the boat and trailer in her backyard otherwise, ie. through another neighbour’s property, then she can store it there, unless there is a municipal by-law or restrictive covenant that would prevent her.

In John’s case, the answer is also simple: he’s trespassing. The mutual drive is 5 feet by 75 feet. If he needs more room to turn around, he’ll have to do that on his own property. If he doesn’t have enough room, because he built a garage, then that’s too bad, he’ll just have to back up between the two houses, and with a little bit of an incline, and a little bit of ice, that could be tricky.

As you can probably appreciate, there are many issues that arise about mutual driveways that are simply not resolved. If you have a good neighbour, then all the little problems are just that: little. But, if you have a difficult neighbour, then, you might want to just move on.

www.OntarioRealEstateSource.com

1. Hello:

This is very informative.

My new neighbours and I share a 75 foot x 7 foot (3’6″ each) right-of-way easement for access to the rear yard as per the Land Title (in the description, together with and subject to a right of way for the purposes of a driveway or passageway…). This is in Toronto.

New neighbours constructed a fence that encroaches into the easement (approximately 9 feet) such that I can no longer back in to my garage into my backyard. I can still go in forwards, but this causes inconvenience.

I just commissioned a survey (which they should have done before construction). They’re clearly encroaching by 9 meters.

The city told me that they do not get involved in this sort of matter, they consider it a “civil matter”. A real estate lawyer told me that I need to hire an expensive litigation lawyer.

I looked up some cases online. In your opinion, does this pass the test for substantial interference?

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You should obtain a legal opinion if you are to proceed. Municipalities just get get invloved.

2. Hi there,
I have a shared driveway and my neighbour drives a big dually work truck and has a car. He park the work truck (dually) at the end of the drive way backed in making it impossible to see past it for on coming traffic whether I back out or drive out The nose of the truck is literally at the edge where the drive way meets the road. Is this legal?

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You are not allowed to block the easement. The driveway is for driving not “parking”.

3. I have a mutual driveway with a right of way defined.
Can our neighbor do anything to his side of the driveway without mutual consent. For example, paving only his half of the driveway or topcoating only his half.

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Yes, it may be “foolhardy”, but it’s likely not illegal, unless there was a specific provision contained in the agreement to the conytrary.

4. My neighbour has rented out his land-locked property, which is using our 120m long one-lane driveway to their property.
Since we have the tenant renting the property, they have a house business and the traffic on our driveway has increased by 100%. I set up signs for slower driving. Nobody cared. I setup more signs with a speed limit of 10km. The traffic has slowed down somewhat. However, the neighbour refuses to slow down.
If someone comes from the front, the other car will either has to back up or drive over our lawn.
Talking to the neighbour is useless.
What can I do to make them to slow down?
What if this ends up in an accident? Who is responsible?
Thank you.

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While this done seem to be rather absurd from the neighbour’s perspective, it would be wise to retain a lawyer, have them write a demand letter on your behalf and hopefully the neighbour will agree to limit their speed. If not, then, an Application can be brought in Court.

Make sure that you have insurance. Also, since it is their insurance company which would be at risk, their insurer would either raise premiums or cancel their policy. If their policy is cancelled, and they cannot switch to another insurer, then, their mortgage becomes due.

5. I am a tenant (not an owner) and I have a shared driveway with the house next door. It’s full of potholes and mud and needs to be re-gravelled. My landlord is telling me she is not the owner of the driveway so she is not responsible for the maintenance, the house next door is. The landlord next door is not being helpful and doesn’t care to fix it. What do I do?

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I am assuming it is a mutual driveway. That means they both have to attend to the repair. You may have the right to withhold rent due to lack of maintenance. You should probably contact a Paralegal who deals with matters before the LTB.

6. I am an owner with a mutual drive. We park an ebike outside of our fence, on the mutual drive side. It is not interfering with the turning radius. The owners next door took it upon themselves to move our bike. Is this something they are allowed to do? Even if it’s not in the way of their entrance?

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You are not allowed to park on the mutual driveway. You can travel over it, but not “park” there.

7. Hello I was wondering if you would know about homes in Toronto all the homes are 75 feet mutual driveways but for some reason my parents home is showing 73 feet and now the next door are trying to build a fence and making life more difficult to enter the back yard with a vehicle thank you

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Of course all of the applicable facts would be required. First step, would be to look at the survey.

1. Thank you for responding back I did look at the survey and it appears 72 feet when all of the other home are all 75 feet is there any chance that it could be a misprint or is there any way to find any older documents from the past thank you

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It would unlikely be a misprint. The others are 75 ft, and yours is 72 ft. You could get a copy of the Plan of Subdivision. It will show all the properties.

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8. A few years ago, the property next to ours was sold to an owner who turned the property into a rooming house/two apartments, basement and main floor. Their garage at the back is dilapidated and seems to be being used for storage. They have put in tile in the backyard and the tenants back in and have hit our back stairs, back fence, garage, run over our garden etc…Doing 20 point turns to get into the spot (horrible drivers). They now have taken to parking in the actual driveway, half in the backyard and half in the actual driveway. From everything I am reading above, they are only allowed to use the mutual driveway to access the parking spot, they cannot park on it, not even for 5 minutes. Is that correct? Also, they rarely shovel their snow, once when I contacted the City, they shoveled the front of the driveway (their side) and this past winter, one of the tenants shoveled a strip on their side from the side door to the sidewalk and pushed the snow onto the road in front of the driveway twice (making our job a lot harder to clear the snow they left there), but not their half and not anything at the back of the property. From above, it appears that they are legally responsible for the maintenance of their half of the property. Is this correct

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It may be helful if you knew exactly where the mutual driveway is located.

Assume that it’s 50 ft in length. Where does it start and where does it end?

It may fall short of the are in the back which they are using to turn around. That may simply be “your poroperty”!

Have a look at your survey.

Certainly, no parking is allowed on the mutual driveway but once they reach their own backyard, then, yes, they can park there.

9. I am a tenant and my lease includes a dedicated parking spot. My landlord advised I am to park in the shared mutual driveway. The neighbouring property has a front yard parking pad and only uses the mutual driveway for ingress and egress. It’s my understanding that one can not park on a shared mutual driveway. My landlord insists they have a gentleman’s agreement with the neigbour but I do not consider that a dedicated, exclusive use spot. Thoughts?

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It might be wise to ask the Owner of the adjoininbg property. Do they have the same understanding of the “genlemen’s agreement?

1. The neigbour says he is ok with use of the mutual driveway for tenant parking but that he exercises the right to ask for the car to be moved at anytime for his access or use temporary use. Parking in the mutual driveway blocks access to basement tenanted units in both his and the landlord’s property as well as to garbage bins.

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10. mutual driveway w easement on both sides. My neighbour has piled up old bricks and rubble on their side of the property line in the middle of the easement, up against the property line.

it’s not really in the way of me coming and going but it looks horrible and they are doing this only to bug me. Am I legally entitled to move the rubble over on to their property and off the easement portion of driveway? Technically I think this presents a trip hazard and obstruction of driveway.

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They are not permitted to pile up bricks and rubble. The purpose for the creation of the mutual easements was ingress and egress.

You will require legal advice to guide you with respect to the appropriate steps for you to take.

11. We have a mutual driveway (with a defined right of way) that we share with a couple and their daughter next door. The daughter drives a motorcycle and parks in their back garage. My husband and I have two Vespas that we park in our garage. Over the years, the tension between the houses has increased due to the noise of the motorcycle coming in late hours, however, the daughter complains that our Vespas wake her as she sleeps in the afternoon.

Both houses have stopped each other from parking in the driveway even to drop off groceries.

It has come time to have our roof reshingled and the flatroof done. Roofers have said they would need access to the back to do our flat portion, but the woman has come out to tell any roofers giving estimates that they won’t be able to use the driveway. Can our neighbours do that? The one half of the driveway is still our property and it is to help maintain our property.

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It is unfortunate that the relationship with the neighbour has deteriorated to this point.

The roofers might be able to deliver or unload whatever needs to be unloaded, but they might not need to park on the driveway all day long.

It may be wise at this point to retain a lawyer to make the appropriate arrangements.

1. Yes it is. I used to have their daughter over to bake with our kids.

Are the arrangements we’re looking at court? A letter of intent? My husband is wondering if paying for an off-duty police officer to stand by would be enough? Or are there other lawyerly things that would have to be put in place? This is making me feel ill.

If we were to move, the new buyers would have to be made aware of the situation right?

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You may be looking at a Court approved sanction or you could be looking to ensure the integrity of the conduct (such as with a police officer to oversee).

There are numerous options.

This could fall within the disclosure obligations. There are a few cases now, which have extended “latent defects” beyond physical and structural issues.