Easements, Entitlements, and Enemies

What happens when neighborly charm turns into a courtroom showdown over driveways, fences, and junk piles? 

Gavin Tighe and Stephen Thiele dive into a thorny Ontario neighbor dispute that spiraled from idyllic cottage country peace to legal chaos. 

They explore how landlocked lots, easements, bad behavior, and skyrocketing property values fuel some of the most bitter legal fights — and why even the nicest people can turn fierce when defending their turf. 

With stories of plywood “Berlin Walls,” concrete saw revenge, and surveillance cameras pointed into windows, this conversation is a fascinating, sometimes funny, and always insightful look at property law, human nature, and the high cost of bad neighborly relations.

Listen for:

1:03 February: Canada’s F word

7:25 Easements 101 crossing your neighbor’s land

12:10 Junk wars when neighbors push too far

13:32 The Berlin Wall plywood fence story

14:47 Concrete saw justice on a Toronto driveway

16:50 Courtroom drama vs mediation possibilities

Mondaq article

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Gardiner Roberts website | Gavin email | Stephen email 

Transcript

Gavin Tighe (00:00):

One neighbor in what was a beautiful part of the province, a gorgeous pristine lakes and forests, built a eight foot high plywood fence across the entire boundary of a thousand yards of property, of a plywood fence. It looked like Berlin in 1962. And so you see people do crazy stuff when it comes to their property and their neighbors. Hello and welcome to Beneath the Law. I'm Gavin Tighe. Stephen Thiele, how are you today?

Stephen Thiele (00:39):

I'm doing great, Gavin. How are you doing?

Gavin Tighe (00:41):

I couldn't be better. It's a beautiful summer's day here in central Ontario, Canada, and for our listeners around the world, as I'm fond of saying, for two months of the year, the most beautiful place on earth. And another 10 months, not so bad, but two months, it is pretty special.

Stephen Thiele (00:57):

I don't know. I'd say 10 months of the year are not bad. Two months are really bad. January and February.

Gavin Tighe (01:03):

Ooh, January and February. Yeah, February is our F word here in Canada. We don't like it. It is chilly, very, very chilly here in Canada in February, not a fun place, but in July it is spectacular. So inviting all of our listeners from all over the globe if they're interested in a great vacation, Canada, July and August. That's your place, I think, just saying. Anyway, so one of the things we do have in Canada is a wonderful sort of hinterland that surrounds our major metropolitan centers in Ontario. Toronto is our largest city, but up just north of Toronto and to the east and the west, north of Toronto is probably one of the greatest playgrounds on earth with hundreds of thousands of lakes and rivers and streams and forests and cottages. People vacation up here in central and northern Ontario in the summer months particularly. And cottages are a place of refuge peace and tranquility most of the time.

Stephen Thiele (02:12):

Yeah, most of the time. And we've seen a lot of cases where these cottage properties end up pitting one neighbor against another for very silly things, and one of them being, I need access to my cottage and it's landlocked and I need to travel over somebody else's land to get to my peace and tranquil, peaceful and tranquil place.

Gavin Tighe (02:45):

Yeah, I mean, one of the things about the beauty of the geography of Northern Ontario is it's kind of all over the place. You've got these crazy odd shaped lakes and rocks and huge rock structures and whatnot. So you often have land that is not configured very geometrically and in odd ways, and sometimes you can't get to certain properties. You got to cross over your neighbor's properties. The other thing too is that a lot of this, these cottage properties were created in the last a hundred years or so. It was pretty ad hoc. I mean, people would go up and stick their cabin up here or there, whatever. Okay, no problem. I walk across my neighbor's lawn. No, he's fine. And you have a lot of kind of loosey goosey, if I can use that word, structures in terms of property holdings, particularly in cottage country.

(03:42):

And one of them, it was involving a kind of strange, I thought it was a little strange set up with a co-op, and they had a group of properties and then they had kind of communal, which is not uncommon. You'll often see that in cottage properties and they'll all get together. And I don't know, they built themselves a tennis court for all the neighbors, and the tennis court is operated sort of cooperatively, and everybody kicks in some money to maintain it or whatever. But that's all very nice in generation number one when everybody's getting along. But by generation five, and the properties have switched hands six times, sometimes people don't get along so good.

Stephen Thiele (04:22):

Yeah, no, for sure. And I think Gavin, to your point, a lot of these cottage communes were developed 60, 70, a hundred years ago without real infrastructure from the municipality, right? So you have,

Gavin Tighe (04:40):

Well, there is no infrastructure

Stephen Thiele (04:41):

One roadway, right?

Gavin Tighe (04:43):

Private roads, and everyone's on a, well, everybody's got a septic bed, nobody's got municipal water or anything like that. And the other thing too, I think it's important to remember, look, one thing Ontario and Canada had, it still does, has a ton of, was space. I mean, a hundred years ago, you could buy a lakefront cottage property of 200 acres for probably about 10 bucks because there was just so much of it. It was like, well, of course it's never ending. And now those same properties are going for millions of dollars. So the value of property has increased exponentially over the course of the last a hundred years, such that now what was sort of, oh, well, no problem. There's tons of property. If I don't like you, I'll just move to the lake next door. No big deal. Now, it's become quite valuable. And when land people get very, very fussy about land, and I'm often say that one of the things is I think more wars have been fought about land pretty much than anything else.

Stephen Thiele (05:51):

It certainly fills the real estate legal books. And there was a case here in Ontario, as you say, involving a not-for-profit corporation selling 19 lots of land back in 1960 with each, they called it a share being attributed to a specific lot. And so we had these lots that were bought and sold at that time or shares in the not-for-profit corporation. And one of these cottage lots was landlocked. It was only accessible by water. And so in real estate law, generally where you have a landlocked property, you generally create agreements which are called rights of way or a right of way to permit the landlocked property to have access to the major roadway that is nearby. And so that's what happened in this particular case. But as you said, Gavin, five generations later when somebody else is purchasing the property, people look at the right of way and say, well, hang on a second. You're traveling over my land. You're not supposed to be traveling over my land. And then a wreck, a fence to block that person from traveling over their land.

Gavin Tighe (07:25):

So just in terms of backing this up a bit, just so that everyone, there are what are called easements and easements are right of ways or whatever, an easement is the right to cross over someone else's property. So one of the one, there's tons of easements around, all over the place that we see all the time. So for example, hydro lines go over property all over the place to carry power. And hydro lines will, generally speaking, be subject to an easement. They have a right to run their hydro lines over someone's property. So similarly, there are easements all over the place, literally. And there are different types of easements, some of them are agreed to. One of the things that is interesting, and I think is not the case here, is there is something called an easement of necessity. An easement of necessity would be for a truly landlocked parcel that otherwise would be useless. In other words that you couldn't get to it. The law will sometimes presume an easement over that over a

Stephen Thiele (08:29):

Property, get a neighbor's land, right?

Gavin Tighe (08:31):

There are other easements which are called easements by prescription. So one of the things, the concepts I think is important to remember, and this is an interesting one in Ontario now, and I don't want to get too into the weeds on it, but anyways, there is a land titles act in Ontario, which arguably takes away the easements of prescription. But in this particular instance, not necessarily. So if you use a property for a given amount of time, and I think it's 20 years is required for an easement by prescription. If I've been using crossing over your property for 20 years and you have not objected to it, I can argue that I've now got a right to cross over your property. The weird part about it is if you said to me, oh yeah, Gav, no problem. You cross over anytime you want, buddy. You have my permission to do so, and I, what a great number where you are, Stephen.

(09:29):

That actually is bad for me because one of the things I require in order to get the right to crossover, not the permission, the right is it has to be adverse to your interest. So if you let me do it, it's not adverse. So that really was the big issue here. There had been this driveway, they've been crossing over the driveway to get to their property, I guess, for quite a long period of time. And they said, well, whoa, whoa, whoa. Wait a minute. We have a prescriptive easement by this point. Then they said, no, no, no, no, no. I've been letting you do it until now because now I don't want you to do it anymore. And I've changed my mind and now I'm saying I'm building a fence. So that was really the argument was I thought when I looked at the case, was the use permissive or not permissive, and I think the finding was it had been permissive.

Stephen Thiele (10:22):

Correct.

Gavin Tighe (10:23):

And one of the things about permission is it can be taken away.

Stephen Thiele (10:26):

So just to fill in some of the facts here, essentially we have this landlocked lot. It doesn't have access to the nearby roadway in order to drive a car to this lot, the co-op or the corporation that was selling these lots had developed an agreement. There was a resolution that was actually adopted by the shareholders of this community giving a road access or right of way so that somebody could reach this landlocked lot by car. And basically there were two adjacent properties over which this right of way appeared to have been granted, but what nobody knew was where was the access point from the road to this land lot. And so the person who had the driveway basically said, no, you've been crossing by permission. The access was on the adjacent lot. And indeed there had been, I guess a pattern of use at some period of time, and we're talking like it was 12 feet wide on the adjacent lot. I think one of the things, and again, this is why this is beneath the law, what influenced the judge and the landowner who had the driveway is that the landlocked owner was actually using the driveway for other purposes.

(12:10):

They were storing things on. They

Gavin Tighe (12:12):

Were a bad neighbor.

Stephen Thiele (12:12):

They were bad neighbors. They were storing things on the person's lot, and the person was getting upset and had had enough and said, if you're going to be that kind of a neighbor, sorry, you can't use my driveway anymore. Use your other access point. It might be a little bit more inconvenient for you, but really that's where the access point is. And the judge agreed with that, and I think that influenced the judge to be quite

Gavin Tighe (12:37):

Honest. Oh, 100%. And I've had a number of these cases over the years with landowners, et cetera, neighbors. It's funny. People like talk about acrimony. There are very, very few disputes, more acrimonious than neighbor disputes. I mean, I even think of a family law who is one of the most acrimonious areas ever, but at least those people liked each other at one point in time. I mean, neighbors, you don't really get to pick your relatives or your neighbors for the most part. So you can get a neighbor that you really, really don't get along with, or that is a really obnoxious type or covetous, if I can use that word of property and keep, I mean, you'll see this all the time where people try to creep their fence over or they try to do something. People get really irritated about that. That is a really a major piece of agitation.

(13:32):

I've had cases where up in cottage country where there was a dispute over a boundary dispute and one neighbor in what it was a beautiful part of the province, a gorgeous pristine lakes and forests built a eight foot high plywood fence across the entire boundary. I mean, we're talking a thousand feet or a thousand yards of property, of a plywood fence. It looked like Berlin in 1962. And I've absent the machine gun turns, although I suppose he might've put a few of those up, if he could have, that would be another episode. So you see people do crazy stuff to really, when it comes to their property and their neighbors.

Stephen Thiele (14:18):

Yeah. And you mentioned that, I recall you having a case many, many years ago in Toronto where you had basically a mutual driveway in order for a person to be able to drive their car to the back of their property where the garage was, and the other neighbor put up a fence down the middle that basically now prevented that car from actually accessing the back of the property.

Gavin Tighe (14:47):

No, they actually did, took a concrete saw out and sawed up the property line in the driveway. Now, in fairness, the other neighbor had decided to also invest in, at the time, closed circuit television cameras that just so happened to be pointed into every window in the neighbor's house. It

Stephen Thiele (15:07):

Was I see.

Gavin Tighe (15:08):

Beyond creepy. So you had, yeah, listen, generally speaking, there are no saints in the neighbor fight. There are just degrees of sinners. But the reality is these neighbor squabbles can get very, very, very heated. And this one clearly did. I mean, and you kind of get it. One neighbor gets ticked off, and Buddy is storing all his junk on their property. And I'm sure, and I didn't know the facts of the case well enough, but I'm sure had been asked nicely to, can you please move your junk? No, I don't want to move my junk. And then the next thing is, well, okay, you don't want to move your junk. No problem, buddy. I'll put a big fence right across your driveway and you won't be using anything. And then it ends up in a courtroom with a judge deciding if there was a right to put the fence up or no, right to put the fence up.

(16:01):

And in this particular instance, the frankly self-help remedy of the one owner of putting the defensive, because I would strongly caution a client against doing that because I think judges get a little annoyed when people run to court after imposing self-help remedies. I mean, the cutting of the driveway with the saw was not a good move. I would've preferred to be there saying, we'd like to be able to do this, your Honor, if that's okay. Sometimes it is better to ask for permission than forgiveness. So that didn't seem to turn the judge off. The judge seems to have, frankly have been more turned off by the bad behavior of the junk storing storage war neighbor who decided to put all their crap on their neighbor's property.

Stephen Thiele (16:50):

Yeah. Look, I agree with you. Self-help remedies, Gavin are not necessarily the way to deal with any dispute. But as you know, people spend a lot of money in court over these kinds of disputes, whether it's a right of way dispute or an adverse possession dispute, they're spending hundreds of thousands of dollars.

Gavin Tighe (17:12):

Absolutely. Absolutely.

Stephen Thiele (17:14):

And one of the things that I think also influenced this particular decision is the landlocked neighbor or the landlocked owner claiming that they had a right of way over this driveway, did not go back to get evidence from previous owners to indicate that they had the right of way. And that was, I think, a major failing deal.

Gavin Tighe (17:39):

And it's really hard. I mean, one of the things you say, well, how hard can it be? I mean, I had a case several years ago involving a cottage property and a claim that there was a right of way over the neighboring property to access the water, and it had to go back a long time. So try to get evidence of what the use of a property in rural Ontario was in the 1960s or the 1950s. Good luck finding someone who A, was alive, and B, if they were, can remember and Oh, yeah. And it's got to be continuous. So the issue is do people continuously cross this property for a period of 20 years in the 1950s and sixties? Yeah, for sure. Try to prove that. No, they didn't prove it. Okay, find a witness. Good luck. I mean, people are off to the, have blown off to the fore buries and people in the 1950s, those people are now in their eighties or seventies or eighties, even if they were children. There are no spring chickens at this point in time. So getting that evidence and certainly getting any documentary evidence or photographic evidence is challenging. But if you're going to make that claim, you better have it.

Stephen Thiele (19:04):

Right. But in terms of photographic evidence, going back, I know that we've spent time on cases where you can now do Google searches and go back in time to see and locate and take a screenshot of whether a car was parked on a certain road or not. Well,

Gavin Tighe (19:25):

Street fuel do it. You can go now. You can now. But I'm saying there was no street view on Google in the 1950s. But you can get, we have in fact, on other cases, gone through municipal archives and got aerial photographs

Stephen Thiele (19:41):

Exactly

Gavin Tighe (19:42):

From decades gone by. It's very helpful, but it's got to be used to support actual evidence of the use of that particular property.

Stephen Thiele (19:53):

And so anyway, one of the other things that strikes me about this case, because we're now seeing it more and more in terms of legal trends, neighbor disputes are actually being determined by mediators now. And there are a number of organizations that permit neighbor disputes to be determined or resolved by a mediator, which reduces costs. There are social organizations that permit people to volunteer as mediators anyway. So there are organizations now that permit permit mediation of neighbor disputes. And I'm just wondering whether this kind of dispute could have been more easily resolved or a better resolution could have been obtained by going to a mediator rather than going to court where there are winners and losers. Right. Mediators are generally trying to get the parties together for a win-win situation. And here, like I said, I think in this case, the judge was influenced by the landlocked owner's, misuse, I guess, of the right of way or the driveway by storing various things. I don't know if it was junk or just other things both. Yeah, we're

Gavin Tighe (21:20):

Assuming it was something noxious. But I mean, yeah, I'm with you. I think frankly though, by the time that the parties have gotten to the stage of suing each other, the neighbors, it's pretty ugly and people are pretty dug in on their positions. And frankly, a lot of this is to, in my experience, really, really nice. People can become quite unreasonable when it comes to their property. They get very, these, I think it's built into people. I think people are hardwired to be very protective of their property. I mean, their turf. And we as species get a little antsy and unreasonable when it comes to people that we think are infringing on there. I mean, I'm always reminded of the Robert Frost line that good fences make good neighbors, which is absolutely true, because when you get into arguments about where the fence should be, boy, people really go off the deep

Stephen Thiele (22:18):

End. No, look, although Canada doesn't have a right to property in its constitution, we fight over our properties as much as the Americans do, probably.

Gavin Tighe (22:31):

Yeah. I mean, we certainly, I've certainly seen my fair share of it over the years. I mean, it's become a little less litigious since the advent of the land title system here in Ontario. I mean, it used to be a registry system here in Ontario, and it made those types of claims for adverse possession, prescriptive easement. I think a lot easier that you see a lot more of them under the land title system that we now have in Ontario. It really doesn't matter if you've got prescriptive use of a property, if you're trespassing on your neighbor's property, at least from a legal perspective, because the title to the property is whatever the title to that particular abstract says it is. So if your title says you have 30 feet of frontage, you've got 30 feet of frontage, and it doesn't really matter if your neighbor sticks this fence over an extra six inches, you've got 30 feet. You own the 30 feet, that's what the Land Titles Act says. That's what you own, period. So there's no, to my view, prescription doesn't really matter that much anymore under the land title system.

Stephen Thiele (23:37):

Well, it doesn't, but as you know, there is the doctrine of Lost Modern grant that would permit a person to still make that claim prior to the first date of it going into land titles if they could go back. But that's the evidentiary issue,

Gavin Tighe (23:56):

Right? Yeah. So it's got to be 20 years, right?

Stephen Thiele (23:58):

10

Gavin Tighe (23:59):

Years it got converted and everything got converted in the early two thousands. So there's very, I don't think there are any registry properties left in Ontario. I think they've all been converted into what's called land titles qualified, which means that that was the date that the clock stopped. So you got to go back 20 years before that. And as I pointed out, that's getting harder and harder. Try finding somebody who can remember, who walked across little Susie's path back in 1982. Those people are becoming fewer and fewer and harder to find as days go by.

Stephen Thiele (24:35):

Yeah, for sure. Anyway, that's why we dig into cases like this is an interesting case. These are the issues that when you get beneath the law come out and that we like to discuss.

Gavin Tighe (24:48):

Absolutely. So thanks very much for listening as always, Stephen. Thanks again for your comments. Doug Downs, our producer. Please send us comments, questions, criticisms, kudos are always welcome, rare, but we love them. And always remember, if no one is above the law, then everyone is beneath it.