Roop v. Hofmeyr

Roop v. Hofmeyr

The petitioners failed to meet the required burden of convincing evidence that an implied easement (by implied grant) or an easement of apparent accommodation arose in 1934 or thereafter and that such easement remains necessary and unextinguished; insufficient admissible evidence of historical use at the time of the...

Source-derived case information.

Citation
2015 BCSC 1755
Parties
Petitioners: James Albert Roop; Melanie Merle Kelleher; Respondents: Wilhelm Meintjes Hofmeyr; Heleen Elizabeth Hofmeyr
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
5 October 2015
Procedural Posture
Easement / Real Property (declaratory Petition) / Judgment on Petition (reasons for Judgment)
Outcome
Application dismissed
Legal Topics
Implied Easement, Easement of Apparent Accommodation, Torrens System, Land Title Act Notice, Access Rights, Extinguishment and Abandonment
Source Language
english
Property Law Real Property Land Title Law Easements Implied Easement Easement of Apparent Accommodation Torrens System Land Title Act Notice +2 more

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Parties

James Albert Roop; Melanie Merle Kelleher

Petitioners

Wilhelm Meintjes Hofmeyr; Heleen Elizabeth Hofmeyr

Respondents

Procedural Posture

Easement / Real Property (declaratory Petition) / Judgment on Petition (reasons for Judgment)

Legal Issues

  1. 1 Whether an implied easement (implied grant) arose in 1934 in favour of 6993 over 7019
  2. 2 Whether an easement of apparent accommodation exists over the shared driveway
  3. 3 Whether any claimed easement was extinguished or abandoned

Ratio Decidendi

The petitioners failed to meet the required burden of convincing evidence that an implied easement (by implied grant) or an easement of apparent accommodation arose in 1934 or thereafter and that such easement remains necessary and unextinguished; insufficient admissible evidence of historical use at the time of the grant, conflicting evidence about permissive temporary access (laurel hedge and eyewitness affidavit), and failure to establish no viable alternatives led to dismissal of the petition.

Court Disposition

Application dismissed

Orders

  • Petition dismissed
  • Parties may address costs and set down submissions to the Court