Banville v. White

Banville v. White

The majority held s.35 of the Property Law Act cannot be used by the dominant tenant to expand an easement against the servient owner's title; the easement grants only a right to pass and repass and permits temporary stopping (including service vehicles) but not parking or placement of portable curbs absent clear grant; rectification remains an available equitable remedy where convincing proof exists but, on the facts and procedural posture, the Court remitted the rectification issue to the trial court for determination on appropriate pleadings and findings.

Citation
2002 BCCA 239
Parties
Appellants (plaintiffs): Marc Andre Banville and Joan Ann Fisher-Banville; Respondents (defendants): Frank Ellison White and Heather Louise White
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
16 April 2002
Procedural Posture
Civil Appeal Property/easement Dispute / Court of Appeal Judgment
Outcome
Appeal allowed in part: appellate panel held s.35 unavailable to expand an easement in favour of the dominant tenement; easement interpreted to permit temporary stopping but not parking or placement of portable curbs; rectification issue not finally decided by this Court and remitted to trial court for determination...
Legal Topics
Rectification of Title, Modification of Easement Under Statute (property Law Act S.35), Parking and Stopping on Easement, Constructive Notice, Abolition of Prescription (land Title Act S.24)
Source Language
English
Property Law Equity Land Title/torrens System Easements Rectification of Title Modification of Easement Under Statute (property Law Act S.35) Parking and Stopping on Easement Constructive Notice +1 more

Case Brief

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Parties

Marc Andre Banville and Joan Ann Fisher-Banville

Appellants (plaintiffs)

Frank Ellison White and Heather Louise White

Respondents (defendants)

Procedural Posture

Civil Appeal Property/easement Dispute / Court of Appeal Judgment

Legal Issues

  1. 1 Whether s.35 of the Property Law Act permits the dominant tenement to apply to modify an easement against the servient tenement
  2. 2 Whether the recorded easement permits parking or placement of portable curbs on the servient land
  3. 3 Whether equitable rectification of the easement is available on the facts and properly pleaded

Ratio Decidendi

The majority held s.35 of the Property Law Act cannot be used by the dominant tenant to expand an easement against the servient owner's title; the easement grants only a right to pass and repass and permits temporary stopping (including service vehicles) but not parking or placement of portable curbs absent clear grant; rectification remains an available equitable remedy where convincing proof exists but, on the facts and procedural posture, the Court remitted the rectification issue to the trial court for determination on appropriate pleadings and findings.

Court Disposition

Appeal allowed in part: appellate panel held s.35 unavailable to expand an easement in favour of the dominant tenement; easement interpreted to permit temporary stopping but not parking or placement of portable curbs; rectification issue not finally decided by this Court and remitted to trial court for determination...

Orders

  • Appeal allowed in part
  • Property Law Act s.35 cannot be used by the dominant tenant to modify an easement against the servient owner's title