Prescriptive Easement for Right of Way (Ontario)
Question:
I am about to submit an Offer on a cottage property. Access requires travel over the properties of three adjacent owners. This arrangement has been going on since the 1970’s. There’s no written agreement. There’s nothing in the Registry Office.
Answer:
You may have a right of way (easement by prescription). This requires evidence of 20 years of continued uninterrupted use.
A prescriptive easement, which this may be, is very difficult to prove. The 20 year period needs to be uninterrupted. It would be interrupted if there was CONSENT, by any one of the owners. It would also be interrupted if there was an OBJECTION by anyone.
So, the good neighbour and the bad neighbour are both troublesome. What you are looking for is “acquiescence”, and “silence”. That is difficult to prove over 20 years.
The best course of action would be a written agreement in respect to the right of way signed by all four property owners. It should deal with costs of maintenance, use, restrictions, location, type of vehicles etc.
Brian Madigan LL.B., Broker