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#19172
EASEMENT SCOFFLAWS get tough love message from ONCA ( non condo ) 2021/01/11 20:09  
Not legal advice as usual.

( Valid easements run with title and permit a wide range of concurrent shared uses without technically identical co-ownership. They can be a critical component of condo & Building Scheme development. But their vulnerability has been chronic for centuries in various formats. And this one took years of litigation to get an Order to remove its encroachment.

Ontario's other private covenants on title are subject to expiry by law ( https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18962&catid=2 )_. But Ontario courts can show sensitivity against letting easements be jeopardized especially where utilities or sole land-based access is at stake https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18979&catid=2 )

Jan 2021 Oakville Hydro obtains from ONCA Ontario's Court of Appeal a strong warning to easement scofflaws ( that's if any are bothering to listen ). It's commensurate with waves of chutzpah entitlement & the vulnerability of easements – here subsurface utility lines on title since 1972. The respondent Oakville folks dared to unlawfully ( & without consents & permits ) build a pool in their backyard. The threatened easement here is a ten foot wide 1972 utility easement protecting actual U/G cable & potential future uses.

ONCA upholds a 2020 ONSC Ontario Superior Court lower court Order initially ordering the encroachments remedied, but corrects its rationale.

Bottom line the pool owners are hit with $ 90 K of Hydro compliancing costs so far ( $ 40 K on appeal and $ 50 K of Oakville Hydro’s $ 77 K in 2020 at ONSC )

RELEVANT Appeal Court dicta include that easements on title are PERPETUAL unless expressly shortened by text ( or held abandoned by a judge, not by some scofflaws ).


And for anyone shrieking about a mere technical derogation - bringing the small stuff to court - ONCA restates that TO BE ACTIONABLE an easement encroachment will have to be proven a “substantial interference” with the use and enjoyment of the easement for the purpose identified in the grant." ( The Ontario precedents cited for that include a 2014 ONCA decision with tip of the hat to a 93 year old dictum by the late Building Scheme superstar jurist William Edward Middleton )

FACTUALS

The Oakville 2012 homebuyers are cited to have ignored the titled easement despite its drawn to their attention at purchase. They claim to have unilaterally concluded without diligence that the Hydro easement in their backyard had been abandoned despite subsurface electrical line still in place. Or maybe they decided to take a chance like thousands of others.

14 months after purchase and WITHOUT EVEN CONTACTING hydro nor applying for a municipal permit they constructed their backyard swimming pool & improvements. Eventually one owner pleaded guilty to a municipal offence for lacking the permit.

BUT to halt the encroachment Oakville Hydro was forced to seek a judicial enforcement Order issued at ONSC 2020 and just confirmed Jan 2021 by ONCA.

Oakville (Town) v. Sullivan, 2021 ONCA 1 issued Jan 6/21 http://canlii.ca/t/jcg2z

Oakville v. Sullivan, 2020 ONSC 1419 http://canlii.ca/t/j5qf5

Oakville v. Sullivan, 2020 ONSC 2494 http://canlii.ca/t/j6wnt
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#19173
de-constructing 2021/01/12 15:09  
not legal advice, as usual.

- It's an expensive lesson if - IF - the encroachers actually happen to get both detected & forced to comply.

How rarely that happens is uncertain. Here it's also noteworthy that ONCA rejects defence claims that future Hydro needs can be accommodated by whatsoever magic without the physical restorations as ordered.

- $ 90 K legal costs get awarded ( combined ONSC & ONCA ) against these poolowners here with counsel.

AN identical $ 90 K had been awarded against the Ottawa Kings Landing ROOFDECK Building Scheme S.R.L. covenant challengers Chapadeau v Devlin without counsel. (see "Building Scheme REVIEW COVENANT survives challenge by FLAGPOLE & ROOFDECK changes KINGS LANDING" - 2018’s Chapadeau et al v Devlin et al ONSC covenant enforcement war. https://ontario.cafcor.org/index.php?option=com_fireboard&Itemid=46&func=view&id=18917&catid=2 )

Both sets of defiers also get judicially ordered to remove the encroachments.

AT OAKVILLE, one guesses the encroachers' final bills ( including physical restoration ) might turn out to exceed $ 200 K ( but it’s unclear if ALL of their encroaching pool etc will now have to be removed ).

- How old is old ? The anglicized medieval term “easement” ( ? "aisement" or comfort, convenience ) happens to wander into the text of 1610’s Aldred’s Case ( pigsty nuisance ) 9 Co Rep 57b; (1610) 77 ER 816, [1558–1774] All ER Rep 622 : “When a man has a lawful easement or profit . . . ”

Modern condo & strata legal regimes arguably try to facilitate enforcing such stuff and to address expiry issues. One can easier appreciate just how wild is the Wild West outside those regimes.
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