In Erickson v. Jones 2008 BCCA 379, the
respondents were tenants-in-common of property described as the
"Erickson Property." Initially, the Ericksons accessed
their land by a road that ran through the middle of two properties,
one belonging to Mr. Jones and the other to Mr. Loper. Mr. Loper
approached the Ericksons and asked them to construct a new road on
the eastern boundary of the Jones and Loper properties. The
Ericksons agreed, and spent time and money creating the new road.
Starting in 1977, the Ericksons used the new road daily and
expended money to maintain the road. In 2002, Mr. Jones purchased
Mr. Loper's land and advised that he intended to limit or
prevent access to the new road.
The Ericksons sued in the Supreme Court for an order that the
old road was a public road or, alternatively, that they had a
private easement over the new road. The Supreme Court held that the
old road was not a public road but that the Ericksons were entitled
to an equitable easement over the new road on the basis of
"proprietary estoppel" (i.e., the doctrine that,
where one person is encouraged to act to its detriment by another
party in circumstances where it would be unjust for the latter to
insist on its strict legal rights, the court will provide relief to
the affected party).
Mr. Jones appealed to the B.C. Court of Appeal, but was
unsuccessful. The court confirmed that, in the circumstances, it
would have been unfair for Mr. Jones to assert his strict property
rights and deprive the Ericksons of access, as they had relied on
Mr. Loper's and Mr. Jones's conduct and refrained from
pursuing any entitlement to use the old road. In addition, they had
been encouraged by both parties to expend money to construct and
maintain the new road.
The case is interesting because it demonstrates that, given the
right set of facts, the doctrine of proprietary estoppel may
circumvent the effect of s. 24 of the Land Title Act,
which abolishes "prescriptive" easements in British
Columbia. A prescriptive easement is one that arises from a long
period of uninterrupted land use, without secrecy, force or
permission. In contrast, an equitable easement may arise, on the
basis of proprietary estoppel, where a landowner has, by words or
conduct, encouraged a land user to believe that the landowner will
not enforce its strict legal rights, and the land user acts on this
belief by taking action or expending money such that he or she
would suffer detriment if no longer permitted to use the easement
area. The court in Erickson did not address the
relationship between prescriptive and equitable easements, but it
is clear that, if the elements necessary to support an equitable
easement on the basis of proprietary estoppel are present, a land
user may be able to enforce the easement, even in the absence of a
written, registered agreement.
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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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