Defining Access Rights In Landlocked Properties Understanding Right Of Way And Insights From Kranenburg v. Grice

The concept of right of way is a crucial legal principle that governs access to land, particularly in cases where a property is landlocked...
Canada Real Estate and Construction

Introduction

The concept of right of way is a crucial legal principle that governs access to land, particularly in cases where a property is landlocked—meaning it has no direct access to a public road. Such situations can lead to disputes between neighbouring property owners, as seen in the recent case of Kranenburg v. Grice.1 This case highlights the complexities surrounding access rights, land use, and the responsibilities of property owners. As William Kranenburg and the Grice family grappled with issues related to a shared laneway that connects their properties, the legal intricacies of easements and maintenance obligations came to the forefront. The outcome not only underscores the importance of clearly defined access rights but also serves as a reminder of the potential challenges that can arise in maintaining harmonious neighbourly relations amidst evolving land use. This article will explore the nuances of right of way, the implications of landlocked properties, and the lessons learned from the Kranenburg v. Grice case.

What is a Right of Way?

A Right-of-Way legally allows someone access through your property to get to another site. Common examples include shared driveways in freehold townhouses or semi-detached homes.

For instance, in an older home, there is a shared driveway that both neighbors use to access their individual parking spaces at the back of their houses. In this scenario, one neighbor owns the land, while the other has a right of way to use the shared section of the driveway to reach their parking area. In this situation, ownership of the part of the property affected by the right of way remains with the registered owner.

The party benefiting from the right of way (the non-owner) must obtain consent from the registered owner before altering that area. For example, the non-owner cannot simply install a fence at the entrance of the shared driveway; they need the registered owner's permission, who has the authority to deny the request. In cases involving rights-of-way, courts must determine whether the land has been "overburdened," meaning that the use of the easement has exceeded what was originally granted.

Case Study

Let's look at our Kranenburg case as an example:

William Kranenburg operates "Hidden Valley Campground" on a landlocked property, accessed solely via a deeded right-of-way (the "Laneway") that runs through the Grices' property.The Grices use their property for agricultural purposes and have noted a dramatic increase in traffic on the Laneway since 2020, when Mr. Kranenburg changed his business model to a come-and-go trailer park and event space. Mr. Kranenburg claims that the Grices have committed nuisance by installing gates and planting trees along the Laneway, restricting access to his business. The Grices argue their actions were necessary for safety and to protect their cattle, and they claim Mr. Kranenburg has overburdened the Laneway and seeks damages for trees he cut down.

Overburdening a right-of-way occurs when its use exceeds the rights and nature conveyed in the easement grant (Sunnybrae Springbrook Farms). For a private nuisance claim, interference with use must be substantial and unreasonable.The court found that Mr. Kranenburg has significantly increased traffic (25-fold since 2020) beyond historical use. The increase in traffic goes beyond the reasonable use historically anticipated for the Laneway.

The court further found that the gates and trees installed by the Grices were determined to not create substantial interference with Kranenburg's access. The gates are an everyday inconvenience rather than a substantial barrier. The Grices' actions are reasonable given the increased traffic for safety and livestock concerns. Insufficient evidence is presented to show that the planted trees impede access or constitute a nuisance.

There is insufficient evidence to determine if Mr. Kranenburg's tree cutting constituted a nuisance. He is advised to communicate with the Grices before undertaking such actions in the future.

Formalizing access if a party is landlocked

A parcel of land (lot) is landlocked (enclaved) if it has no access to the public road or if this access is insufficient, difficult or impassable and typically because access to the property is surrounded by land owned by others. If a neighbor allows passage over their property, it is known as an "allowance road," meaning the property is not considered landlocked as long as that permission is granted.

If your property is legally or economically landlocked and your neighbor will not grant access, you can seek a legal easement through the courts. This allows the landlocked property (dominant lot) to pass over the neighboring property (servient lot). Factors considered include the most reasonable route for access and the impact on the servient land. Public use of a right-of-way for ten years can create a presumption of its suitability. Importantly, an easement cannot be established through long-term use alone; it must be legally granted or obtained through contract to ensure access to a landlocked property.

To formalize access rights for a landlocked property, it is essential to register an agreement. Begin by drafting a legal document that outlines the terms of access, including the parties involved, a clear description of the access route, and specific rights granted, such as allowed vehicle types and maintenance responsibilities. Consulting a lawyer to ensure compliance with local laws is advisable. Once finalized, both parties should sign the agreement in the presence of a witness or notary, as required. Next, file the signed document with the local land registry office to make it a matter of public record, thereby protecting your access rights against future claims.

Importance of clearly communicating the access required

Clearly communicating the access required for a landlocked property is crucial to establish mutual understanding between the parties involved, reducing the risk of misunderstandings or disputes about the terms of access.

Clear communication can help identify any potential issues early on. It also fosters a cooperative relationship between neighbors, which can be beneficial for addressing future concerns. Lastly, thorough documentation of the agreed-upon access terms can provide legal protection and serve as a reference point in case of disputes, further solidifying the arrangement's validity and effectiveness.

Maintenance obligations and mechanisms for renegotiating

When formalizing a right of way, it is important to set out maintenance obligations and mechanisms for renegotiating the agreement in case of a sale or change of use.

First, the agreement should clearly define the maintenance responsibilities of each party, specifying who is responsible for upkeep, repairs, and any associated costs.

Next, include a clause that addresses renegotiation procedures in the event of a property sale or significant change in use. This clause should also consider the potential need for adjustments to access terms or maintenance responsibilities based on new property uses or owners.

Finally, incorporating a dispute resolution mechanism can provide a clear pathway for resolving disagreements that may arise during renegotiation. By proactively addressing these aspects in the agreement, both parties can ensure clarity and fairness, fostering a positive long-term relationship while protecting their interests.

Footnote

1. Kranenburg v. Grice, 2023 ONSC 6700 (CanLII)

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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