'Tortuous' property law section needs legislative adjustment

Bob Aaron in Legal

Appeal court judges find wording of law 'virtually incomprehensible'

A three-judge panel of the Ontario Court of Appeal has called the wording of a section of the Ontario Real Property Limitations Act "virtually incomprehensible" and "tortuous at best."

In a decision released in late April, Justice Robert Blair noted that the wording of section 31 of the Real Property Limitations Act is essentially the same as that of the 1832 Prescription Act of the United Kingdom.

The appeal court noted that the British law "has long been disparaged."

Both the Ontario and British laws deal with the process of acquiring property rights – such as squatter's rights – by uninterrupted use over a long period of time.

Justice Blair referred to the 1966 U.K. Law Reform Commission, which concluded that the "Prescription Act 1832 has no friends. It has long been criticized as one of the worst drafted Acts on the Statute Book."

Despite this, the 177-year-old wording of section 31 remains in force in Ontario. It contains only one sentence, but is an incredible 186 words long.

The unusual judicial swipe at a piece of Ontario legislation appears in an appeal decision involving a dispute over a shared driveway.

Larry and Joan Storm and John Kaminskas owned adjacent homes on Kitchener St. in Niagara Falls. The two houses were separated by a narrow, paved driveway on the Kaminskas property, but the driveway encroached three feet into the Storm property.

Kaminskas parked his car on the front portion of the single-car driveway between the entrance steps to the two houses and the front sidewalk. He claimed he was following a pattern that had been accepted by the owners of the two houses for the previous 56 years, and that he had received written consent to the use of the driveway from a prior owner of the Storm property in 1991.

After the Storms bought their property in 2006, they sought to build a fence down the middle of the driveway between the buildings, along with a concrete curb on the dividing line of the open paved area. This would have prevented Kaminskas from parking in front of the houses.

In early 2007, Kaminskas applied to the Ontario Superior Court for an injunction restraining the Storms from building a fence along the property line. Kaminskas also asked the court to declare that he had a right to park in the driveway as a result of continuous use of that right by the owners of the house for 56 years.

In law, this right is known as a prescriptive easement, which comes into force by uninterrupted use over a period of time. Calculating that period of time involved interpreting section 31 of the Real Property Limitations Act.

At the initial hearing, the judge ruled that Kaminskas was entitled to an easement over the disputed strip and she issued an injunction restraining the Storms from building a fence.

The Storms appealed and won at the Court of Appeal.

One of the main issues on appeal was when and how to calculate – according to section 31 – the period of time necessary to obtain an easement over another person's land.

In order for Kaminskas to win his case, he had to prove that his use of the claimed right had to have been both continuous for a 20- or 40-year time period, and "as of right."

"As of right" means that the use must be uninterrupted, open, peaceful and without permission for the entire time period.

The Court of Appeal decided that the judge at the initial hearing misinterpreted the very confusing provisions of section 31 and that Kaminskas' claim under the legislation was defeated by the written consent from a previous owner of the Storm property.

For me, the message of the case is that when three judges of the highest court in the province say that a piece of Ontario legislation is "tortuous at best" and "virtually incomprehensible," it's time for the legislature to fix it.

Bob Aaron is a sole practitioner at the law firm of Aaron & Aaron in Toronto and a board member of the Tarion Warranty Corp.  Bob specializes in the areas of real estate, corporate and commercial law, estates and wills and landlord/tenant law. His Title Page column appears Saturdays in The Toronto Star and weekly on Move Smartly.  E-mail bob@aaron.ca

Subscribe to the Move Smartly blog by email

Legal     |    

Toronto’s most authoritative real estate insights, delivered right to your inbox.