Carlini v. Hammoud

Carlini v. Hammoud

The prescriptive easement was established because the dominant tenement's owners and their agents used the driveway in a continuous, open, peaceful and uninterrupted manner without express permission since 1978 in ways that accommodated and were necessary for the enjoyment of the dominant tenement; those credibility-based factual findings are supported by the record and warrant deference, so the appeal must be dismissed.

Citation
2011 ONCA 285
Parties
Applicant (respondent in Appeal): Anthony Carlini, the Personal Representative of the Estate of Maria Carlini, deceased; Respondent (appellant): Abdullah Hammoud
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
12 April 2011
Procedural Posture
Civil / Court of Appeal Appeal From Superior Court Judgment (r.j. Harper, June 8, 2009)
Outcome
Appeal dismissed
Legal Topics
Prescriptive Easement, Dominant and Servient Tenement, Continuity of Use, Credibility Findings, Registration of Easement Description
Source Language
English
Property Law Easements Real Property Prescriptive Easement Dominant and Servient Tenement Continuity of Use Credibility Findings Registration of Easement Description

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Parties

Anthony Carlini, the Personal Representative of the Estate of Maria Carlini, deceased

Applicant (respondent in Appeal)

Abdullah Hammoud

Respondent (appellant)

Procedural Posture

Civil / Court of Appeal Appeal From Superior Court Judgment (r.j. Harper, June 8, 2009)

Legal Issues

  1. 1 Whether the respondent estate enjoys a prescriptive easement over the disputed driveway
  2. 2 Whether the use was continuous, frequent, uninterrupted, open and peaceful and without express permission since 1978
  3. 3 Whether the use accommodated and served the dominant tenement and was reasonably necessary for its better enjoyment

Ratio Decidendi

The prescriptive easement was established because the dominant tenement's owners and their agents used the driveway in a continuous, open, peaceful and uninterrupted manner without express permission since 1978 in ways that accommodated and were necessary for the enjoyment of the dominant tenement; those credibility-based factual findings are supported by the record and warrant deference, so the appeal must be dismissed.

Court Disposition

Appeal dismissed

Orders

  • Respondent estate declared to have a prescriptive easement over the disputed driveway
  • Respondent estate awarded costs of the appeal fixed at $3,000 inclusive of disbursements and all applicable taxes