English v. Perras

English v. Perras

The appeal was allowed because the applicants failed to establish a prescriptive easement: the evidence supported that historical use was permissive rather than 'as of right' (the 1980 time‑limited Agreement registered on title indicated permission/acquiescence and rebutted any inference of 20 years of unchallenged use), and the applicants did not prove the claimed easement was reasonably necessary to enjoy 371 given the absence of evidence about the retaining wall and alternatives; accordingly the application judge erred and her order (including requiring removal of the fence) was set aside.

Citation
2018 ONCA 649
Parties
Respondents (applicants): James English; Respondents (applicants): Jill Perry; Appellants (respondents): David Perras; Appellants (respondents): Brenda Perras
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
18 July 2018
Procedural Posture
Civil / Appeal From Superior Court of Justice Judgment
Outcome
Appeal allowed; order of the application judge set aside
Legal Topics
Prescriptive Easement, Lost Modern Grant, Acquiescence Vs Permission, Reasonable Necessity, Costs
Source Language
English
Property Law Real Property Easements Civil Procedure Land Titles Prescriptive Easement Lost Modern Grant Acquiescence Vs Permission +2 more

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Parties

James English

Respondents (applicants)

Jill Perry

Respondents (applicants)

David Perras

Appellants (respondents)

Brenda Perras

Appellants (respondents)

Procedural Posture

Civil / Appeal From Superior Court of Justice Judgment

Legal Issues

  1. 1 Whether a prescriptive easement by lost modern grant was established
  2. 2 Whether historical use was 'as of right' or permissive
  3. 3 Whether the claimed easement was reasonably necessary to the enjoyment of the dominant tenement given the retaining wall

Ratio Decidendi

The appeal was allowed because the applicants failed to establish a prescriptive easement: the evidence supported that historical use was permissive rather than 'as of right' (the 1980 time‑limited Agreement registered on title indicated permission/acquiescence and rebutted any inference of 20 years of unchallenged use), and the applicants did not prove the claimed easement was reasonably necessary to enjoy 371 given the absence of evidence about the retaining wall and alternatives; accordingly the application judge erred and her order (including requiring removal of the fence) was set aside.

Court Disposition

Appeal allowed; order of the application judge set aside

Orders

  • Appeal allowed and order of the application judge set aside
  • Order in the court below requiring the Perrases to remove their fence is set aside