Prescriptive Easements in Ontario and the Land Titles Rule

You may have driven across a neighbour's driveway to reach your garage for fifteen, twenty or thirty years. Nobody ever complained, and nothing was ever signed. Does that long habit give you a legal right to keep going?

The short answer is that it can, but only in some situations. A great deal depends on whether the land is in the older Registry system or in Land Titles. This article walks through the rules in plain terms.

What a prescriptive easement is

A prescriptive easement is a right to use someone else's land that comes from long, open use rather than from a signed document. The idea is that if an owner puts up with a use for a very long time, the law may eventually protect it.

Ontario's statute sets the time periods. How they apply to your situation depends on the facts, so it is worth confirming with a lawyer.

The 20 and 40 year periods

Under section 31 of the Real Property Limitations Act, 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 periods are counted back from the period next before a court action. 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. Put another way, an act that the affected person did not put up with or accept for that year after notice does not count as an interruption. Whether a particular act qualifies is worth confirming with a lawyer.

The Land Titles rule

Most of the practical difficulty comes from section 51 of the Land Titles Act. For land registered under that Act, no title, right or interest adverse to the registered owner can be acquired by any length of possession or by prescription. This applies despite the Real Property Limitations Act, so adverse possession and prescriptive easements cannot start running after land is in Land Titles.

There is an exception. The 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.

In short, the twenty and forty year periods mainly matter for land that is still in the Registry system. Whether a claim based on a period that fully ran before conversion to Land Titles survives is a technical question, and a lawyer should confirm it from your title history.

Other points that affect a claim

• Permission: if the use was allowed in writing, the forty-year absolute right does not arise.
• Light and air: no one can acquire a right by prescription to the access and use of light or air for a building, apart from rights acquired by twenty years' use before March 5, 1880.
• Registered easements: a registered easement is a different thing. It is recorded on the title of the land it crosses.
• Ownership: a claim to a right of way is not a claim to own the land. Claims to take ownership, known as adverse possession, are a separate topic with a ten-year limit for recovering land.

What to do next

• Find out whether the neighbour's land is in Land Titles or the Registry system; a lawyer can check this on title.
• Write down when the use began, who used the route and how often.
• Collect photos, old letters or messages that show whether anyone gave permission or objected.
• Do not rely on long use alone if a formal, registered agreement is possible.
• Get legal advice before you build, pave or spend money on land you do not own.

If the neighbour is willing, a written easement agreement that is registered on title usually gives far more certainty than any argument about years of use.

Frequently asked questions