Openshaw v. Bhalla et al

2000 BCSC 646 Citation: Openshaw v. Bhalla et al 2000 BCSC 646 Date: 20000417 Docket No.: 052/00 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: SARA OPENSHAW PETITIONER AND: TARA SINGH BHALLA AND SARJEET KOUR BHALLA RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE R. D. WILSON Counsel for the Petitioner D. H. Whitson Counsel for the Respondents D. W. Thompson Dates and Place of Hearing/Trial: 8 March and 7 April 2000 Victoria, BC I. [1] The petitioner seeks an order declaring that she holds a property interest, that is to say, either an implied easement, or an equitable license, over a parcel of land, adjacent to her own, owned by the respondents. That interest is said to arise from the history of the lands in question. The material aspects of that history are as follows. II. [2] In 1941, the Bishop of Victoria was the registered owner of a number of contiguous parcels of land, within a subdivision, in the Victoria Land District. That subdivision included Lots numbered 3 and 31 of the Plan. Those two lots, as well as the other parcels owned by the Bishop, were in the west end of the subdivision. The Bishop's parcels were bounded by Union Road on the north, Palmer Road on the south, and Quadra Street on the west. [3] Sometime in 1941, the Bishop caused to be constructed a church rectory on the Lot numbered 31. A detached garage was also constructed. Father Thomas Mangan moved into the rectory upon its completion in 1941. [4] On 30 November 1942, the interior lot line between Lots numbered 3 and 31 was cancelled. The combined parcel was then known as Lot A of Block 1, Section 32, Victoria District, Plan 1366. [5] Prior to the cancellation, Lot 3 fronted on Union Road. Lot 31 fronted on Palmer Road. The new Lot A, therefore, had a frontage on Union and a frontage on Palmer. The remaining parcels owned by the Bishop fell to the west of Lot A. [6] Over the years, further subdivisions occurred which altered the legal description of these two Lots, 3 and 31. For the purposes of these reasons, however, I will continue to refer to the parcels by their original designations, that is to say, Lot 3, Lot 31 and the remainder. [7] The petitioner is the present registered owner of Lot 31. The respondents are the present registered owners of Lot 3 and the remainder. [8] At a date not disclosed in the evidence, the interior lot line between Lots 3 and 31 was reinserted. What had been Lot A therefor reverted to its initial status of two parcels of land. [9] By a transfer dated 27 July 1943, the Bishop conveyed Lot 31 to the Sisters of the Immaculate Heart of Mary. The Sisters established the Sacred Heart School. The rectory was used by them as a convent and school. [10] In December 1958, the Sisters moved out of the property, and title was returned to the Bishop. Thereafter, Father Planeta occupied the improvement on Lot 31, as the church rectory. Father Planeta remained in occupation until March 1966. [11] On 15 December 1966, the Bishop granted a right to purchase Lot 31 to Extension Holdings Ltd. That company granted a sub-right to purchase to Rochon and Rochon, on 16 December 1966. The Rochons took title to the property on 8 June 1977. [12] As well, Lot 3 and the remainder were the subjects of a right to purchase, granted by the Bishop to Extension Holdings Ltd. [13] In 1969, Extension Holdings Ltd. transferred its interest to Capital Builders Ltd. which, in turn, transferred its interest in those properties to the respondents (then in a corporate capacity) in 1985. III. [14] From the time Father Mangan took up occupation of the rectory on Lot 31, access to the garage on Lot 31 was gained from Union Road. The petitioner says that it is more likely than not that the access would have traversed Lot 3. This is so because Lot 3 has historically been a car park. It was a car park for the church facility and continues to serve as a car park for the apartment complex the respondents operate on the remainder. [15] In addition to the habitual traversing of Lot 3 to gain access to the north end of Lot 31, it is said that the Rochons expended money constructing a carport, re-roofing the same, and laying down asphalt in their driveway. That habitual traversing of Lot 3 appears to have continued without comment until the respondents took title to the Lot. It was some months after taking possession that the respondents realized that Mr. Rochon was traversing Lot 3. [16] Upon learning of Mr. Rochon's use of Lot 3, Mr. Bhalla made inquiries of Mr. Rochon. In result, says Mr. Bhalla, Mr. Rochon asked that the Bhallas allow him to continue to cross over Lot 3, so long as he continued to maintain a license to drive a motor vehicle. In consideration of leave being granted to cross over Lot 3, Mr. Rochon offered to keep an eye out for vandals on Lot 3 -- "from his property he had a very good vantage point to watch the backside of the apartment building". The respondents say that the Rochons did not claim that they were entitled to an easement over Lot 3. As a result of the discussions, however, the respondents did permit the Rochons to traverse Lot 3, to gain entry to the carport on Lot 31, so long as Mr. Rochon maintained a driver's license. IV. [17] On a date not disclosed in the evidence, Mr. Rochon passed away. Lot 31 was an asset of his estate. It was offered for sale. The petitioner was introduced to the property by a realtor. Initially, the petitioner acted through her agent, one Nigel Smith. Upon being introduced to the property, Mr. Smith says that the realtor told him -- "... that there was no 'legal' access (registered easement on title) to the north side of the property but there had been continuous access enjoyed by the past resident since he had first lived there." (He had lived there for the past 33 years). She further stated that if full legal access (registered access) was required, that could be negotiated with the owner of the adjacent property. [18] There is a dispute between Mr. Smith, on the one hand, and the realtors, on the other, over the content of discussions concerning this access. For the purposes of this decision, I find that it is not necessary for me to resolve the conflict in recollections of the content of the conversations. [19] Mr. Smith instructed the realtor to prepare an offer to the Rochon estate on behalf of the petitioner. The following provision formed part of that offer: Purchaser accepts the property on an "as is, where is", basis. Purchaser to satisfy himself as to legal access to rear carport. Purchaser has received and approved land title search. [20] The petitioner's offer was accepted. The sale concluded and the petitioner took occupancy on 28 November 1999. The following day, an agent of the respondents told the petitioner that access to the carport, from Union Road, was about to be closed off. Discussions ensued. In early December 1999, the respondents caused a fence to be constructed along the south boundary of Lot 3, effectively terminating the petitioner's access to the carport, from Union Road. [21] Access to the north end of Lot 31, from Palmer Road, is inhibited by lack of space on the west side of the Lot, and the existence of a large tree on the east side of the Lot. V. [22] The petitioner contends that when the Bishop sold Lot 31 to the Sisters, he granted an easement by implication over Lot 3, for the benefit of Lot 31, to provide ingress and egress from Union Road, to the garage, or carport, on Lot 31. [23] The petitioner argues that the legal principles are clear. If there is unity of title with a subsequent separation by grant of the dominant tenement; and if there is an apparent continuous user; and if there is a necessitous and demonstrative need of the easement for the proper enjoyment of the dominant tenement, then the law will imply an easement. [24] Because it is a property interest implied by law, it cannot, and need not, be registered pursuant to the provisions of the Land Title Act. [25] Furthermore, the implied grant of easement to the Sisters was irrevocable, and is a benefit and a burden, to all subsequent purchasers of the servient and dominant tenements. [26] Alternatively, says the petitioner, the uninterrupted and continuous use of Lot 3 as an access route, constitutes a license. The expenditure by the Rochons of money, in reliance upon that continued use, renders the license irrevocable. [27] The respondents say that the petitioner is seeking to rely on what is known as the "rule" in Wheeldon v. Burrows. That rule is not, and ought not to be, the law in the Province of British Columbia. If it is, then the petitioner has not brought herself within the strict confines of the rule. If in the alternative, there was a license, then the same was terminated by agreement between the Rochons and the respondents. VI. [28] The inclusion of the rule in Wheeldon v. Burrows as part of the law of British Columbia was raised, but not decided, in Ellis v. Eddy Holding Ltd. I am not persuaded that the rule is part of the law of British Columbia, as it applies to bona fide purchases for value without notice. [29] First, the Land Title Act prescribes that an indefeasible certificate of title is "conclusive evidence" of its contents. [30] Second, s. 29(2) of the Act prescribes, in part: Except in the case of fraud in which he or she has participated, a person contracting or dealing with or taking or proposing to take from a registered owner (a) a transfer of land, or (b) a charge on land, or a transfer or assignment or subcharge of the charge, is not, despite a rule of law or equity to the contrary, affected by a notice, express, implied or constructed, of an unregistered interest affecting the land or charge ... (the underlining is mine) [31] Third, acquisition of an interest in the land by the implication of an easement, has attributes of acquisition of an interest by prescription. Acquisition of interest by prescription was abolished in this province by s. 24 of the Land Title Act. I find that the respondents in this case were bona fide purchasers for value without notice of an unregistered claim against Lot 3, by Lot 31, at the time title to Lot 3 was acquired. [32] If I fall into error by thus holding, then, in any event, I find that the petitioner has not proved that the facts of this case attract the application of the rule. [33] It is incumbent upon the petitioner to prove that, in 1943, the Bishop of Victoria established by his conduct, a continuous and apparent "easement" over Lot 3, for the benefit of Lot 31, which was necessary for the reasonable enjoyment of Lot 31. [34] All of the parcels in question were related to activities of the church. Lot 3 was a car park. On Lot 31 was the rectory. On the remainder, the church and related improvements. It cannot be said that it was more likely than not that a passage, through Lot 3, from Union Road, to the north boundary of Lot 31, was apparent. Certainly, it would not be apparent in 1985. [35] As well, it is more likely than not that the tree on the east side of Lot 31 was not of the size depicted in the photograph in evidence. Lot 31 enjoyed frontage on Palmer Road. It may have been more convenient to drive to the garage from Union Road; it was not necessary. [36] In result, the petitioner's claim for a declaration that she is entitled to an easement over Lot 3 is dismissed. VII. [37] If it is to be implied that the history of access to the garage on Lot 31 conferred a license, then that would be a personal right, not a charge on the land. As such, it could be revoked on reasonable notice. If the license was rendered irrevocable, that could only occur as a result of money expended by the Rochons in reliance on the permission granted by the license. I find, in these circumstances that if there was an equitable license, it was expressly terminated by the terms of the agreement concluded between the Rochons and the respondents in or about 1985. Seemingly, the benefits of the license were no longer necessary once Mr. Rochon lost his driving privileges. Subsequent, intermittent use by others, without the knowledge of the respondents, would not, in my opinion, suffice to resurrect an irrevocable license. VIII. [38] The petition is dismissed with costs. "R.D. Wilson, J." The Honourable Mr. Justice R.D. Wilson