Prescriptive Easements in Ontario: Claiming Long Use of a Path

Perhaps your family has walked or driven across a neighbour's land to reach your property for decades. Nobody ever complained, and nothing was written down. Now the neighbour wants to close it off, and you wonder whether years of use have given you a legal right.

Ontario law does recognize rights built up through long use, called prescriptive easements. But the rules are strict and depend heavily on how your land is registered. This article explains the main statutory points and where the answer turns on facts.

What a prescriptive easement is

An easement is a right to use part of someone else's land, such as a path, lane or driveway. A prescriptive easement is one that arises from long use rather than from a signed and registered document.

The Real Property Limitations Act says that a claim to a right of way or other easement cannot be defeated if the right was actually used without interruption for the full period of twenty years. After forty years of such use, the right is absolute and indefeasible.

The courts have also developed tests for these claims through case law. Those tests are not summarized here, so a lawyer should review how they apply to your situation.

The 20-year and 40-year periods

The periods are counted back from the period next before a court action. In practice that means the use needs to be established up to the point a dispute reaches court.

An act counts as an interruption only if the affected person put up with it or accepted it for one year after having notice of it. This matters for both sides. A landowner who blocks the path and then does nothing may not be treated as having interrupted the use, while a user who is blocked and accepts it for a year may lose the benefit.

Situations that change the answer

• Written permission: the 40-year absolute right does not arise if the use was enjoyed by consent or agreement expressly given for that purpose by deed or writing.
• Light and air: no one can acquire a right by prescription to access and use light or air for a building, other than rights acquired by twenty years' use before March 5, 1880.
• Land Titles land: no title, right or interest adverse to the registered owner can be acquired by any length of possession or prescription, despite the Real Property Limitations Act.
• Rights from first registration: the Land Titles bar does not prejudice an adverse claim based on possession by a person who was in possession when the first owner was registered with a possessory title only.

The 20 and 40 year periods mainly matter for land still in the Registry system, or where the periods had fully run before the land was converted to Land Titles. Which system your land is in is something to confirm early.

How this differs from adverse possession

An easement gives a right to use land. Adverse possession is a claim to the land itself. Under the Real Property Limitations Act, no one may enter land or bring an action to recover land except within ten years after the right first accrued. When that time expires, the right and title of the person who could have recovered the land is extinguished.

Where the owner is a minor or incapable when the right accrues, they may sue within five years after the minority or incapacity ends, or after their death, whichever happens first. Land Titles registration also bars adverse possession claims from starting.

What to do next

• Check whether the land is in Land Titles or the Registry system.
• Search the title for any existing registered easement, which would make a long-use claim unnecessary.
• Write down when use began, who used the path and how, and whether anyone ever gave permission.
• Collect old photos, aerial images, receipts and letters, and names of people who can confirm the use.
• Note any past attempts to block the path and how you responded.
• Speak with a lawyer before confronting the neighbour or going to court.

Frequently asked questions