August 20, 2024
What would you do if your neighbour put a gate across your shared driveway?
THE ISSUE
THE CASE
This is illustrated in Nolet v. Granger, a recent Ontario Superior Court decision.
In Nolet, the shared driveway was protected by a registered easement over the neighbour’s half of the shared eight-foot-wide access to the parking at the rear of the neighbouring homes. There had been an issue about a gate at the rear of the driveway in 2014 which was resolved without court action.
Then in 2023, one party’s contractor installed a gate across the entire driveway at the road.
Substantial interference is required before the court will give an order to remove the obstruction (the gate).
The gate did not lock out the applicants, who simply had inconvenience in having to get out of their vehicle to open the gate, so the respondents said, in effect “what’s the big deal?”. The respondents complained that the gate was necessary to keep vagrants out of the backyards. In more technical language, they argued that the gate was not a substantial interference with the easement.
The judge disagreed. They looked at recent cases, especially from the Ontario Court of Appeal, as to what constitutes “substantial interference”.
Inconvenience may be enough to be substantial interference. The interference does not have to make it impossible or impractical to use the driveway.
The judge also looked at the terms of the easement which permitted vehicles a right of way “of the fullest description for all lawful purposes.”
There was also evidence that the presence of the gate reduced the value of the property, by making it difficult to sell- who would want to buy the inconvenience?
They felt the alleged problem with vagrants was not a good reason to allow the gate to remain. As the gate was not locked, people could still enter the properties.
The gate was ordered removed.
TAKEAWAYS
- It takes substantial interference with a right of way for a court to intervene.
- “substantial” may simply be inconvenience.
- Courts will give orders to protect rights of way.
HOW WEILERS LLP CAN HELP YOU
Rights of way and shared driveways are common in Thunder Bay, and throughout Northwestern Ontario.
If you are a property owner or developer and shared use of adjoining property is an important issue to you, you need a lawyer who is familiar with the issues. The commercial and real estate lawyers at Weilers LLP have that experience. We have a proud tradition of drafting and interpreting easements.
If you find yourself in a dispute over an easement or other property rights, our litigation team works closely with our real estate team to protect your rights. We love tough cases and have won some that were very tough indeed.
There is never a bad time to give us a call and see if we might be the right lawyers for you.