Prescriptive Easements in Ontario Cottage Country

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Cottage Litigation, Real Estate Litigation, Recreational Property, Recreational Property Litigation1 Comment

The Ontario Superior Court of Justice decision in Arcon Property Holdings Ltd. v. Nelson, 2019 ONSC 2267, involved a dispute between cottage owners over easement rights related to a 15 foot wide strip of land near Grand Bend.

The right-of-way was mainly a paved road used by the cottage owners to access their properties from the road but it also extended past the pavement to the waterfront.  The applicant complained that the respondents parked their vehicles on the right-of-way which prevented them from accessing the beach, launching their boat, building ramps and structures to facilitate launching their boat and parking a trailer in their driveway.

The applicant sought an order prohibiting the respondents from parking on the right-of-way and interfering with their easement rights.  The Court found that the applicant’s easement was merely for “ingress and egress, in, over and upon” the property and did not provide the applicant with the right to access the waterfront with a vehicle to launch their boat.  After considering the language of the easement, its historical and customary use, and intended or contemplated use when the easement was created, the Court found that the easement only permitted access by foot.

Next, the Court found that the respondents were entitled to a prescriptive easement to park their vehicles on the right-of-way.  The respondents, and their family, had parked their vehicles there since 1955 and their use was as of right meaning it was open, uninterrupted, notorious and continuous, without objection from the property owner.

If you require legal representation in respect to easements, cottage disputes and real estate litigation, please contact us for an initial consultation.

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About the Author

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.

Practitioner in Civil Litigation with a focus in insurance defence, real estate litigation, condominium disputes and commercial litigation. Bio | Contact

One Comment on “Prescriptive Easements in Ontario Cottage Country”

  1. I have owned a cottage for 22 years since 1998 and been using a dirt road loop from paved road to paved road. I have land bordering this right of way as a landowner. A neighbour locked a gate at one end to prevent my ingress and egress. My use has been by walking, running, and golf cart. I could get affidavits from my household and others verifying my continuous use. Are there grandfathering rules for my qualification to establish a right of way for 20 years. Can we have a free consultation? What will a complete process cost to get my rights?

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