It has long been clear that a landowner who grants a right-of-way over his land does not give up the right do what he wants with that land, as long as the use does not interfere with the easement, as granted.
On October 24, 2014, the Ontario Court of Appeal affirmed this principle and provided a helpful overview of the law as it relates to encroachments on rights-of-way.
The case of Weidelich v. de Koning involved a right-of-way running behind a series of six row houses in Toronto. The right-of-way allowed the owners of these houses, known in law as the “dominant owners”, to access their garages. The owners of the house at the entrance to the right-of-way built an addition to their home that encroached upon a part of the right-of-way.
The Court of Appeal upheld the “substantial interference” test, stating that “an encroachment on a private right-of-way is actionable only where the encroachment substantially interferes with the dominant owner’s ability to use the right-of-way for a purpose identified in the grant”.
The dominant owner does not own the land upon which the right-of-way runs, but only enjoys the reasonable use of that land subject to the terms of the grant. However, the landowner cannot create an obstruction that prevents the dominant owner from substantially and practically exercising his right as conveniently after as before the obstruction. Further, the wording of the grant of the right-of-way may be so broad as to its use, or so specific as to its necessary dimensions, that almost any form of interference may be unlawful.
Hence, every case of encroachment on a right-of-way will turn on the specific circumstances, including the terms of the grant, the nature of the encroachment and its impact on the use of the right-of-way. The law also differs with respect to public as opposed to private roads.
With this decision, the Court of Appeal also made clear that it is irrelevant if a landowner deliberately encroaches onto lands subject to a right-of-way, so long as the interference is not “substantial”. In this regard, the Court held that Albiston v. Liu (a decision of the Small Claims Court) was wrongly decided.
Turning to the result in Weidelich, the Court of Appeal denied the neighbours’ appeal. It was uncontested that the addition to the house did not impede the neighbours’ ability to drive to and from their garages. The laneway remained at least 4.4 metres wide where the addition was built. Since the addition to the landowners’ home did not substantially interfere with the neighbours’ use of the right-of-way, it was not actionable.
By: Kyle Gossen
