Can 20 Years of Use Give You a Right of Way in Ontario?

Maybe you have walked a path, driven down a lane or used a shared driveway across a neighbour's land for years. Over time it can feel as though the use has turned into a right. The law does recognize something like this, but only in a narrow set of cases.

This article explains the test Ontario law uses for a right of way gained through long use, often called a prescriptive easement. It also explains why the type of land registration matters so much, and what to check before you rely on or dispute a claimed right.

What a prescriptive easement is

An easement is a right to use part of someone else's land for a limited purpose, such as a right of way to cross it. A prescriptive easement is one that arises from long use rather than from a written agreement. In Ontario, the Real Property Limitations Act says a right of way or other easement can be acquired by prescription.

The 20-year test

The test requires actual enjoyment of the right as of right, without interruption, for the full 20 years. Each part matters in practice:

• Actual enjoyment: you really used the path, lane or driveway, not just occasionally planned to.
• What this means on the facts is often disputed.
• Without interruption: the use carried on for the whole period.
• The full 20 years: a shorter period does not qualify.

Whether your use meets this test depends on the facts, so it is worth getting legal advice before you assume you have a right.

When an interruption counts

Not every disruption breaks the 20 years. Under the Act, an interruption counts only if it was submitted to or acquiesced in for one year after notice. In plain terms, if an owner blocks the way or objects, and the user gives in or goes along with that for a year after being told, the interruption can count against the claim. A short-lived obstruction that the user does not accept may not.

Land Titles land and other limits

The most important exception involves the land registration system. Under Land Titles Act s. 51(1), no title, right or interest in Land Titles land that is adverse to the registered owner can be acquired by any length of possession or by prescription, despite the Real Property Limitations Act. So encroachments and easements cannot ripen into rights after the land enters Land Titles. In general, the 20 years must have been completed before the land entered Land Titles.

The possessory-first-registration exception is narrow, and it applies only to a first owner registered with possessory title. Separately, the ten-year limit for actions to recover land is a different rule. It should not be confused with the 20-year easement period.

What to do next

If you rely on a long-used right of way, or a neighbour says you have none, start by gathering the facts.

• Find out whether the land is registered under Land Titles, and when it entered that system.
• Write down when your use began, how it was used and whether it ever stopped.
• Note any objection, blockage or sign from the owner, and how you responded.
• Keep photos, letters and statements from people who saw the use.
• Speak with a lawyer before building, blocking access or starting a dispute.

Frequently asked questions