Bob Aaron email@example.com
Neighbours in talks after mutual drive dispute
Of all the cases that reach our courts, perhaps the most bitterly contested are disputes between neighbours. A classic example of a disagreement which should never have gone before a judge was heard in Ontario Superior Court last month.
Gary Fife and Karen Cohan are neighbours on Roslin Ave. in North Toronto. Fife has lived in his home since 1984, while Cohan bought her house in May of this year.
Registered on the title to both properties is a shared driveway that is 76 feet long and seven feet wide. It was created in 1923 to allow the owners of each house to encroach on 3 1/2 feet of the other's land for the full length of the 76-foot right-of-way, in order to access backyard parking areas.
When the original 1923 houses were standing on the lots, the 76-foot driveway was long enough to allow both neighbours to drive up to the end of the right-of-way and turn easily into their respective rear yards.
In 1985, the Fife house was enlarged by an addition at the rear. After construction was completed, the 76-foot driveway wasn't long enough to allow Fife to drive into his backyard.
He then extended the driveway by an additional 39 feet to get past the house addition and turn into his backyard. He used the extension continuously until 2007.
In 2003, a builder bought the house next door and constructed a new three-storey house with an integrated front-facing garage and front driveway. The old garage that had been used by the owners of that house for years was no longer needed and was demolished.
When Cohan purchased the new home in May, her husband told Fife that he would be fencing the backyard down to the upper end of the 76-foot right of way, which would block access to the undocumented 39-foot extension of the driveway. This would effectively prevent Fife from using his backyard parking pad.
In response, Fife brought an application last month before Justice Edward Belobaba to allow him to continue to use the 39-foot "extension" of the driveway.
Unfortunately for Fife, title to both properties is registered under the Land Titles Act.
This legislation makes it impossible to obtain rights to another person's land by adverse possession, or what is commonly known as squatter's rights.
As a result, even though Fife had used the driveway extension for more than 20 years without opposition, he was unable to acquire any additional rights to the Cohan property. The law calls these rights an easement by prescription, or a right-of-way that arises by the passage of time.
Fife argued that he needed the driveway as an "easement of necessity," but Justice Belobaba ruled that denial of access to the parking pad is at best a "serious inconvenience." The law, he said, would not grant an easement of necessity because the Fife property was not landlocked.
In the end, Justice Belobaba dismissed Fife's application although it seems he did so reluctantly.
"I do, however, offer this comment," the judge wrote. "Mr. Fife and the previous owners of (the property next door) have been using the mutual drive amicably and in good faith for more than 20 years to access their backyard parking areas.
"Because of the Land Titles registration, Mr. Fife cannot be granted a prescriptive easement and the Cohans can legally build a fence across the top end of the laneway even though this will block the access to Mr. Fife's backyard parking pad. In these circumstances, I would hope that Mr. and Mrs. Cohan would give Mr. Fife permission to park his car on the registered right-of-way. The Cohans no longer need this laneway and it would be the right thing to do."
Earlier this week Fife told me that he had not decided on an appeal, but that negotiations were ongoing with the neighbours in the wake of the court decision.
Bob Aaron is a Toronto real estate lawyer. He can be reached by email at firstname.lastname@example.org, phone 416-364-9366 or fax 416-364-3818.
Visit the column archives at www.aaron.ca/columns/toronto-star-index.htm.
CanLII - 2007 CanLII 28324 (ON S.C.)Fran ais English Home >
Ontario > Superior
Court of Justice > 2007 CanLII 28324 (ON S.C.)
Fife v. Cohan, 2007 CanLII 28324 (ON S.C.)
Depew v. Wilkes, 2002 CanLII 41823 (ON C.A.) (2002), 60 O.R. (3d) 499
(2002), 216 D.L.R. (4th) 487 (2002), 162 O.A.C. 23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Donald Gary Fife (Applicant) v. Karen Cohan (Respondent)
BEFORE: Mr. Justice Belobaba
COUNSEL: Keith M. Landy for Mr. Fife /Applicant
Eric Fournie and Oleg Roslak for Ms. Cohan
HEARD: July 13, 2007
E N D O R S E M E N T
 The applicant, Donald Fife, lives at 205 Roslin Avenue, Toronto.
The respondent, Karen Cohan, has recently purchased the house next door at 203
Roslin. This is an application by Mr. Fife for an order granting an easement
that will allow him to continue to use the mutual driveway between the two
houses to access his backyard parking pad and for an injunction prohibiting the
respondent from erecting a fence that would block this access.
 Mr. Fife has been living at 205 Roslin Avenue since 1984. He and
the previous owners of 203 have been using the mutual driveway to access their
backyard garages or parking pads and have been doing so amicably for more than
 Registered on the title of both properties is a legal right of
way that is 76 feet long and seven feet wide. The right of way was created in
1923 to allow the owners of 205 and 203 to encroach upon each other s land for 3
feet for the length of the 76-foot easement in order to access the backyard
 The 76-foot right of way that is registered on title is not long
enough to allow Mr. Fife to access his backyard parking. When the easement was
registered in 1923, the 76-foot right of way was sufficient to allow the owners
of 205 and 203 to drive up the laneway and turn into their backyards. In my
view, if no additions were built onto the back of the houses, both neighbours
would have had ample room to drive up the right of way and turn easily into
their respective backyards.
 The 1969 Survey shows a frame addition at the rear of 205. The
measurements on the Survey suggest that after the frame addition was added to
the back of the house, the 76-foot right of way was no longer long enough to
allow the 205 owner to access his backyard parking area without driving over his
neighbour s land.
 There is no evidence before the court as to when the frame
addition was added to 205 or by whom. What is clear is that when Mr. Fife tore
down this old frame addition and added his new and larger addition in 1985,
the 76-foot right of way stopped well short of what he needed to drive into his
backyard. Mr. Fife says he has been using an additional 39 feet of laneway to
get past his 1985 addition and turn into his backyard. He has been doing this
openly and continuously for more than 20 years. It is this additional 39-foot
portion that is at issue on this application, or more accurately, the additional
39-foot strip that encroaches 3 feet onto 203 s property.
 In 2005, a builder purchased 203 with the intention of tearing down
the existing structure. He proceeded to build a new three-story house with an
integrated front-facing garage and front driveway. The old garage in the
backyard that had been used for years by the previous owners of 203 was no
longer needed and was torn down.
 In May, 2007 the respondent, Ms. Cohan, purchased the new home.
About two weeks before the closing and again just after closing, the
respondent s husband told Mr. Fife that he would be fencing his backyard down to
the upper end of the 76-foot right of way. Part of the fence would come halfway
across the mutual laneway and would effectively prevent Mr. Fife from accessing
his backyard parking pad. The matter could not be settled by the parties, so
Mr. Fife brought this application.
 Is Mr. Fife entitled to an order that will allow him to continue
to use the mutual drive for another 39 feet beyond the 76-foot registered right
of way so that he can access his backyard parking pad, something that he has
been doing for more than 20 years?
 If Mr. Fife s property had been registered under the Registry Act
rather than the Land Titles Act, I would have had no difficulty granting the
order that he seeks. Under a Registry Act registration, more than 20 years of
open and continuous use will generally establish a prescriptive easement: s.31
of the Real Property Limitations Act. Here, however, both properties are
registered under the Land Titles Act. Section 51(1) of the Land Titles Act
makes clear that no title can be acquired by length of possession or by
 Counsel for Mr. Fife argues four grounds upon which an easement for
the additional 39 feet can be created in favour of his client even though the
properties are registered under Land Titles:
(1) the doctrine of lost modern grant ;
(3) common intention; and
(4) proprietary estoppel
 In my view, none of these arguments can succeed on the facts herein.
(i) The doctrine of lost modern grant
 The doctrine of lost modern grant is a legal fiction that was
created before the advent of statutory limitation periods to counteract the
harshness of the common law rule that required proof of continuous use from time
immemorial: Ebare v. Winter,  O.J. No. 14 (C.A.) at para. 29. The doctrine
of lost modern grant is, in essence, a legal vehicle for finding easement by
prescription: Henderson et al v. Volk et al,  O.J. No. 3138 (C.A.).
However, as already noted, an easement cannot be acquired by prescription on
properties registered under the Land Titles Act: also see Cringle v. Strapko,
 O.J. No. 2119 (Gen. Div.) at para. 11. The lost modern grant argument
does not succeed.
(ii) Easement of necessity
 Mr. Fife has not established an easement of necessity. I say this for
two reasons. First, an easement of necessity is an implied easement that arises
at the time of the original conveyance that is, when the two lots were
originally severed and sold: Cringle, supra, at para.16. Here, the original
1923 conveyance included a registered right of way that was 76 feet in length.
The additional 39 feet that has been used by Mr. Fife over the past twenty plus
years was not part of the original conveyance. Secondly, a finding of
necessity generally requires a showing that one s entire property would be
land-locked or made otherwise inaccessible without the implied grant of an
easement. Mr. Fife s inability to drive up the entire 115 feet and access his
backyard parking pad is no doubt a serious inconvenience but this
consideration does not satisfy the requirements that must be met in order to
establish an easement of necessity: Barton v. Raine (1980) 29 O.R. (2d) 685
(C.A.) at para. 12.
 Counsel for the respondent also reminds the court that at the time
the right of way was granted, it was sufficient. The 76-foot portion is no
longer sufficient because Mr. Fife added an extension to the back of his house.
It is difficult to argue necessity to get around a problem that you yourself
 Counsel for Mr. Fife submits that the decision of the Court of Appeal
in Barton v. Raine has been overturned by Depew v. Wilkes, 2002 CanLII 41823 (ON
C.A.), (2002), 60 O.R. (3d) 499 (C.A.). In Depew, argues counsel for Mr. Fife,
the court concluded at para. 24 that the appropriate test for necessity is not
whether one s property would otherwise be land-locked and inaccessible, but
whether the access to the parking area was reasonably necessary for the better
enjoyment of the dominant tenement. In other words, all that Mr. Fife has to
show is that accessing his backyard parking pad is reasonably necessary for the
better enjoyment of his property.
 I do not read Depew this way. Nor do I agree that Depew has
overturned the meaning of necessity as set out in Barton v. Raine. The two
cases proceeded on a fundamentally different premise. In Barton, the plaintiff
was unable to establish a 20-year prescriptive easement so the court had to
consider whether an easement could be established on the basis of necessity or
common intention. The Court of Appeal found that necessity could not be
established because, absent the easement, the property was not land-locked and
the denial of access to the backyard parking area was at best a serious
inconvenience. In Depew, a 20-year prescriptive easement had been established.
The discussion surrounding this issue on appeal was whether the appellants on
the cross-appeal had to show that parking their cars in front of the cottages
was reasonably necessary for the better enjoyment [of the property]: see para.
24. The discussion about reasonably necessary was simply an elaboration of
the accommodation requirement (para. 19) that must be satisfied before an
easement can be granted. Simply put, Depew preserves the distinction between
easements acquired by prescription (where better enjoyment of the property may
be a relevant factor) and easements of necessity (where you have to show that
the denial of the easement would result in the property being land-locked and
inaccessible): paras. 21 to 23.
 Returning to the facts herein, Mr. Fife cannot establish a
prescriptive easement because the properties are registered under the Land
Titles Act; he cannot establish an easement of necessity because, following
Barton v. Raine, his property would not otherwise be land-locked; and, as the
Court of Appeal has ruled, the denial of access to a backyard parking pad is at
best a serious inconvenience and not a basis for an easement of necessity. The
argument based on necessity does not succeed.
(iii) Common intention
 I turn next to the argument based on common intention. Counsel for
Mr. Fife submits that in the circumstances I should infer a common intention
that the registered 76-foot right of way would be extended as is required so
that the owners of 205 and 203 could park their vehicles in their backyards. In
Mr. Fife s case, says his counsel, the registered right of way should be
extended another 39 feet to allow him to access his backyard parking pad.
 I am entitled to find an implied easement on the basis of a common
intention if I can conclude by necessary inference from the circumstances in
which the original 1923 conveyance was made that there was a common intention
that the 76-foot right of way could be extended to whatever length would be
required to allow the parties access to their backyard parking areas: I am
paraphrasing the language in Barton v. Raine, supra, at para. 21.
 It would certainly be easier to find such a common intention if
the original 1923 conveyance did not already specify a fixed-length right of way
and all you had was the shared expectation that the mutual drive would be used
to allow the neighbouring owners to access their backyard parking areas: this
was the situation in both Barton and Cringle, supra. However, where the
original conveyance provides for an explicit 76-foot easement that at the time
of grant is sufficient for its purpose, how can I now find as a necessary
inference that the original grantor also intended that the explicit easement
could be extended indefinitely to accommodate an owner who chooses to add an
addition to the back of his house? In the face of the express dimensions of the
right of way that is registered on title, and in the absence of any supporting
evidence, I cannot in good faith find or infer any common intention that the
76-foot right of way could be extended to whatever length would be required to
allow the parties access to their respective backyard parking areas. The
argument based on common intention does not succeed.
(iv) Proprietary estoppel
 I now turn to Mr. Fife s final argument proprietary estoppel. In
order to establish an equitable easement on the basis of proprietary estoppel,
Mr. Fife has to show three things: (1) that the owner of 203 induced or allowed
him to believe that he will have some right or benefit over that owner s
property; (2) that he relied on this belief and acted to his detriment with the
owner of 203 knowing that this was the case; and (3) that it is now
unconscionable for the owner of 203 to deny Mr. Fife the right or benefit that
he expected to receive: Eberts v. Carleton Condominium Corp. No. 396, 
O.J. No. 3773 (C.A.) at para. 23.
 Mr. Fife says that the builder who purchased 203 as a tear-down
reassured him, in essence, that he would continue to have access to his backyard
parking area after the new house was built and that he relied on this
reassurance to his detriment. In my view, the evidence does not support this
submission. At the Committee of Adjustments hearing in October, 2005, the most
that the builder said was that the parking garage at the rear of 203 was going
to be demolished. Nothing else was said or promised. Nor did Mr. Fife ask for
any more information or seek any reassurance from the builder that he would be
able to continue to use the full length of the mutual laneway to access his
 Even if something more had been said by the builder, Mr. Fife had not
filed an objection to the minor variance that was being sought by builder and
had no grounds on which he could have objected to the variance which was on the
other side of the property. In sum, neither the first nor the second
prerequisite for proprietary estoppel has been satisfied there was no promise
or reassurance; there is no evidence of detrimental reliance. And, the answer
given by the Committee of Adjustment to Mr. Fife s question about the purpose of
the mutual driveway (to allow the owners of both properties to access their
backyard parking areas) does not preclude the new owners of 203 from exercising
their strict legal rights and insisting that the right of way between the houses
be confined to the 76-foot easement that is registered on title. Estoppel has
not been established on the evidence. The argument based on proprietary estoppel
does not succeed.
 The application is therefore dismissed.
 I do, however, offer this comment. Mr. Fife and the previous owners
of 203 have been using the mutual drive amicably and in good faith for more than
20 years to access their backyard parking areas. Because of the Land Titles
registration, Mr. Fife cannot be granted a prescriptive easement and the Cohans
can legally build a fence across the top end of the laneway even though this
will block the access to Mr. Fife s backyard parking pad. In these
circumstances, I would hope that Mr. and Mrs. Cohan would give Mr. Fife
permission to park his car on the registered right of way. The Cohans no
longer need this laneway and it would be the right thing to do.
 If the parties are unable to agree on costs, I will be pleased to
receive brief written submissions. Ms. Cohan should deliver her costs
submission within 20 days, and Mr. Fife within 10 days thereafter. I will be
interested to learn what if any arrangements have been made to accommodate Mr.
Fife s parking concerns.
 I thank counsel for their assistance at the hearing and for their
efforts in trying to reach a settlement.
Released: July 20, 2007
 I say this because the 1969 Survey shows that the registered right of way
extends well beyond the rear wall of 203 and based on the scale being used about
nine feet or so beyond the original rear wall of 205.
 If Mr. Fife had shown that the frame addition was not an addition but
was actually part of the original building when the right of way was registered,
and thus the registered right of way was never sufficient for its intended
purpose, the argument of common intention may well have succeeded. But no such
evidence was offered, and frankly, I doubt if any such evidence exists. After
all, most additions are added after the original building has been
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