We often have clients who complain to us that somebody has
encroached on an easement or right of way by constructing an
addition, garage, fence or hedge on the right of way or easement.
They claim that their "legal rights" have been impinged
upon and their right to use the right of way is limited or
diminished by virtue of the encroachment.
Sometimes, these clients ask us to send letters to their
encroaching neighbour insisting that the encroachment be removed
and that the right of way be kept absolutely free and clear in
accordance with its proper and full boundaries as contained in the
grant of the easement.
In the case of Weidelich. v. de Koning, (2014) 122 O.R.
(3d) 545, the Court of Appeal had to consider the effect of a
building addition that encroached onto a private right of way,
which was granted for the purpose of vehicular access to houses of
the owner's neighbours. The driveway ran from the street
alongside the owner's house and then along the backs of the
owner's and his neighbours' houses so that the neighbours
had access to the parking areas behind each of their houses. Every
owner owned the land on which the right of way was located as part
of his or her property but it was subject to rights of way in
favour of the other owners. The owner built an addition on a part
of his land that encroached on that part of his land that was
subject to the right of way. Four of the neighbours who had the
benefit of the right of way over the owner's property objected
and brought an application.
The trial judge found and it was admitted that the
neighbours' access was not substantially interfered with
despite the encroachment. The court held that ultimately, that was
the test in order to require the owner to remove the encroachment.
The court held that it did not matter if the owner inherited his
property with the encroachment or deliberately built into the right
of way as long as the encroachment did not substantially interfere
with the neighbours' access. Even permanent structures may not
substantially interfere and therefore do not give rise to a right
to removal. The case includes a sketch showing the location of the
right of way and the encroachment.
The Court of Appeal did not find that the building addition did
not encroach. It clearly encroached on the right of way. It held,
however, that in order for the encroachment to give rise to a cause
of action (the Court of Appeal refers to the encroachment being
actionable), there must be substantial interference with rights
granted to the neighbours. The Court found that the laneway
remained accessible and passable both before and after construction
of the encroaching building and dismissed the application.
The neighbours appear to have also sought an order that the
right of access and ingress contained in the grant of right of way
included the ancillary right to snow removal. The court confirmed
the law that ancillary rights are those that are reasonably
necessary to the enjoyment of the right of way granted and that the
determination of the existence and scope of any claimed ancillary
right is a factual one. However, the record did not contain
sufficient facts to make a determination. In conclusion, the court
said that if disagreements arise in the future over ancillary
rights, they can deal with the matter based on appropriate evidence
but, hopefully, common sense and neighbourly goodwill will find a
This case may be of assistance in answering your clients'
questions about neighbourhood disagreements. Perhaps, it will be of
assistance in encouraging your clients to find something else to
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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