Easements Are Defined by Their Original Grant
Bennett v. Chadwick, 2026 ONCA 468
Disputes over rights-of-way are among the most common sources of conflict between neighbouring property owners.
A recent decision of the Ontario Court of Appeal, Bennett v. Chadwick, 2026 ONCA 468, provides an important reminder that an easement is governed by the document that created it, not by the route that may have become more convenient over time.
Background
The case involved a long-running dispute over access to a landlocked cottage property within the Cressview Lakes development.
The owners of Lot 52 claimed that a neighbouring property owner had unlawfully interfered with their access by constructing a fence across what they believed to be their established right-of-way.
They also alleged that the corporation responsible for managing the development had acted oppressively by permitting the fence to be built and by failing to properly address their concerns.
Both the application Judge and, ultimately, the Ontario Court of Appeal rejected those claims.
The Original Easement Controlled
The central issue was determining the location of the legal right-of-way.
The property owners argued that a 1974 agreement created a new easement running solely across Lot 46. However, the Court concluded that the governing legal document remained a 1961 shareholder resolution, which granted access over both Lots 45 and 46.
Although the 1974 agreement acknowledged the existence of a right-of-way, it did not describe its precise location or state that it replaced the earlier access arrangement.
The Court therefore held that the original easement created in 1961 remained unchanged.
A Licence Is Not an Easement
An important aspect of the decision is the Court’s distinction between an easement and a licence.
For many years, the owners of Lot 52 had used a more convenient driveway located on the neighbouring property. However, the Court held that this use was merely by permission.
A licence is a personal privilege that can generally be revoked by the landowner. It does not create a proprietary interest in land.
By contrast, an easement is a legal interest attached to the property itself and continues unless legally extinguished or modified.
When the neighbouring owner revoked permission after the owners refused to remove items stored on her property, she was entitled to do so.
Convenience Does Not Change Property Rights
The appellants argued that the newly erected fence made access more difficult by forcing them to use a less convenient route.
The Court acknowledged that the original route may not have been as desirable as the neighbouring driveway.
However, the law protects the easement that was granted, not necessarily the route that is easiest to use.
The application Judge found that the original right-of-way remained fully usable by vehicles and continued to provide legal access to the property. The Court of Appeal found no basis to interfere with those factual findings.
The Oppression Claim Also Failed
The owners also alleged that the corporation managing the development had acted oppressively by:
- allowing construction of the fence;
- failing to provide certain corporate records;
- relying on alleged regulatory non-compliance; and
- excluding them from aspects of corporate governance.
The Court rejected these allegations.
To obtain relief under Ontario’s oppression remedy, a claimant must establish both a reasonable expectation and conduct that is oppressive, unfairly prejudicial, or unfairly disregards their interests.
The evidence did not support such a finding.
Instead, the Court accepted that the fence was erected only after repeated requests for the owners to remove personal property from the neighbouring lot had gone unanswered.
Lessons for Property Owners and Real Estate Professionals
The decision reinforces several practical principles that frequently arise in Ontario real estate disputes:
- Historical documents creating easements remain the primary source of legal rights.
- Longstanding use of a neighbour’s property does not necessarily create a legal easement.
- A licence to use another person’s land is generally revocable unless supported by some independent legal right.
- Courts will not relocate or expand an easement simply because another route is more convenient.
- Property disputes should not be transformed into corporate oppression claims without clear evidence of unfair corporate conduct.
Considerations
Bennett v. Chadwick is an important reminder that property rights are determined by legal documents, not by custom or convenience.
For purchasers, property owners, and real estate professionals, the case underscores the importance of carefully reviewing historical title documents, easements, surveys, and registered agreements before assuming that longstanding patterns of use reflect enforceable legal rights.
Where uncertainty exists regarding access rights, obtaining legal advice before a dispute arises is almost always less costly than litigating after relationships have broken down.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com