In anticipation of building a swimming pool, which would encroach upon part of the easement, an owner applied to modify the easement to have that part released. All three properties had given and received to and from each other, the burden and benefit of mutual easements over this strip of land. Three adjoining, separately owned and operated, commercially busy lots had access to a highway over a nine metre strip parallel to the highway, at the front of the three properties. Since the parties were using the common right-ofway, it could not be said to be obsolete and the encroaching owner was given six months within which to remove the building. This owner claimed that the easement was obsolete when the other owner applied for an order to remove the encroaching garage.
One owner built a garage, which encroached upon the easement. The owners of two adjoining lots had a common road between them to provide access. The court agreed that the easement could be cancelled without causing injury to the other party, who had the benefit of the easement. Whether modification or cancellation will injure the person entitled to the benefit of the easement is another factor the court can consider. The adjacent property owner then applied to have the easement cancelled, on the ground that it had become obsolete and cancellation would not injure the owner of the waterfront property.
The owner had other access and did not use the easement for some years, until she finally decided to clear it for her use. An owner of waterfront property had an easement for access through adjacent property. The court can cancel an easement when changes in the neighbourhood, the land, or other circumstances have made it obsolete. Taking into consideration the value of the building and the difficulty and expense of removing it, and the concrete pad upon which it sat, the court gave the encroaching owner an easement over the other owner's property for the duration of the life of the barn, upon payment of compensation. In turn, the other owner asked that the barn be removed, so that the other owner could put a garden in its place. When the encroachment was discovered, the encroaching owner asked the court to vest title in his name for the area encroached upon, upon payment of compensation to the other owner.
In another case, neither adjoining owner was aware that a barn built by one owner encroached upon the other owner's property. The owner who obtained this benefit was ordered to pay $3,200 to the owner whose land assumed the burden of the easement. An easement was given, not only to accommodate this encroachment, but to provide this access. One house encroached upon the neighbour's property to such an extent, that with the true boundary, the owner would have had to trespass to obtain access to the rear of his house. Now with the Property Law Act, the court can still order the removal of the encroachment, but it also has the power to grant an easement for the land encroached upon, or to give title to that land to the encroaching owner, on payment of compensation to the owner whose land is encroached upon.Īn example of the power to permit an encroachment to continue is found in a case involving adjoining properties, whose owners incorrectly accepted the fence between their properties as the boundary.
The example of the legislation that allows the courts to remedy those problems is the Property Law Act.īefore it became law, virtually the only power a court had when a building encroached was to order it to be removed, and with respect to easements, little or no power to vary or cancel them. An example of a problem, is a building that encroaches upon another property, or an easement that no longer serves its purpose. While from time to time we all rail against too many laws weighing us down, there are laws created by legislation which provide remedies for the problems created by our shortsighted predecessors - in title to the property we own and the strict application of the law to those problems.
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