March 2011-In the spirit of the (belated) Oscar season, nothing beats the drama of boundary disputes (those with personal experience or higher entertainment standards may disagree). For your consideration I present a decision from the Ontario Superior Court, Piekarczyk v. Zebrowski, the parties to which I creatively refer to as P and Z.
P and Z are Toronto neighbours, their houses are separated by a paved strip nine feet wide. Walking by, it looks like the strip is a driveway for P, who did use it to park in her garage. The catch is that a width of 1.5 feet of that strip is Zs property.
The plot thickens: Z built a fence at the back of his strip in a way that made it difficult for P to access her garage. P argued (first over the fence and then to a judge) that she had a right (or prescriptive easement) to travel over Zs portion.
In order to establish such a right, P had to demonstrate that she (and prior owners of her property) used the neighbours 1.5 feet continuously, openly, uninterrupted and peacefully for twenty years without permission. Further, those years had to occur before registration of the subject property in the Land Titles System, the automated system of land registration in Ontario.
Both Ps and Zs property were brought into Land Titles in 2001 so P had to provide evidence from 1981 to 2001 and on that basis her claim failed.
Claims like Ps are getting more difficult to make. First, most property is or soon will be in Land Titles, which means there is a good chance the relevant period has ended and the evidence of use is fixed; use moving forward wont further a right. Second, the evidence is getting older and harder to obtain: prior owners may be untraceable or unable or unwilling to assist.
Taking the dispute as far as P and Z wasnt cheap, either. It involved affidavits, cross-examinations and a trial of issues. Like any litigation, battles between neighbours also have non-monetary impacts.
In similar circumstances, it might be worth considering alternatives including a lease, documenting a new easement with the relevant consents or, heck, moving the garage. Of course, alternatives depend on the dynamic and personalities of the parties.
For P and Z, the tension continues: Z was prepared to build a fence down the entire length of the boundary line. Although Z might be within his rights to do so, it likely wont win him the best actor nod.