The Driveway Easement a Survey Caught Before It Was Blocked

The situation

Abirami had worked as a pharmacist for close to a decade, most of it at a busy retail location, and had spent the last two years saving toward a first home with her partner, Senthil, an accountant. When they found a semi-detached property in Pickering that fit their budget, one feature stood out on the listing: the driveway was shared with the house next door, each owner holding a registered right to use a strip of the other's land to reach their own garage. It was a common arrangement on that street, built into the original subdivision decades earlier, and it had never given the current owner any trouble.

An easement, in plain terms, is a legal right for one property owner to use part of a neighbouring property for a specific purpose, without owning that land outright. In Pickering, as in much of Ontario, shared driveway easements are common on older narrow lots, where the builder split a single wide driveway between two houses rather than build two separate ones. The right of way is registered on title, meaning it runs with the land and binds future owners, not just the people who agreed to it originally. Abirami and Senthil's agreement of purchase and sale, at roughly $780,000, was conditional on financing and on a satisfactory review of title, the standard step where a lawyer checks the property's legal history before the deal becomes final.

Their real estate agent had mentioned the shared driveway only in passing, framing it as a minor quirk rather than something to look into. Abirami brought Treadstone Law in during their conditional period specifically to do that review, more out of general caution than any suspicion that something was wrong.

What the review found

A title search is more than confirming who owns a property. It traces the registered history of a parcel of land, including any easements, rights of way, mortgages or other interests attached to it, and confirms that what a buyer is agreeing to purchase matches what the seller can actually deliver clear of surprises. For a property with a shared driveway, that review has to look closely at two things: the exact wording of the registered easement, and whether the physical reality on the ground still matches it.

The registered easement gave Abirami's future property a right of way over a defined strip of the neighbouring lot, running from the street to her garage. Reviewing the description alongside a recent survey of the neighbouring property, however, showed something the listing had not mentioned: a wooden fence and a small garden bed on the neighbouring lot extended roughly a metre into the easement strip, narrowing the usable width of the shared driveway. It was not enough to make the driveway impassable yet, but it was enough that a car parked at the wrong angle, or a future owner extending the fence a little further, could turn a narrow inconvenience into a driveway too tight to use.

This is the kind of problem that easements are especially prone to. A right of way exists on paper, but nothing physically stops a neighbouring owner from building, planting or storing something inside its boundaries over time, particularly if the strip has never been surveyed or fenced to match the registered line. Left alone, an encroachment like this tends to get worse rather than better: each year it stands unchallenged, it becomes a little more entrenched, and a future dispute becomes a little harder to resolve cleanly. Ontario's Limitations Act, 2002 generally requires a claim to be started within a set number of years of discovering the problem, which meant that treating this as someone else's future problem was not a safe option — waiting could eventually cost Abirami the practical ability to enforce her own right of way.

The seller, Dante, who had lived there for six years without using the driveway edge closely enough to notice the creeping fence line, had not raised it and may genuinely not have known how far it extended. That did not change the legal reality: buying the property as-is meant inheriting a driveway that no longer matched what was registered, and a dispute with a neighbour that Abirami had never met, before she had even moved in.

What we did

1. Confirmed the encroachment with an updated survey comparison. Rather than rely on the neighbouring lot's older survey, we had the boundaries of the easement strip checked against current measurements, confirming precisely how far the fence and garden bed extended into the registered right of way. Precision mattered here — a vague sense that something looked off would not support any negotiation or legal step that followed.
2. Raised the issue as a requisition before the conditional period expired. A requisition is a formal objection a buyer's lawyer raises during the conditional period, requiring the seller to resolve a defect in title before the sale can close as agreed. Raising it in time was essential: once Abirami's conditions were satisfied and the deal became firm, her leverage to require a fix before closing would have been far weaker.
3. Required written confirmation that the right of way would be restored. We advised Abirami not to accept a verbal assurance that the neighbour would move the fence eventually. Instead, we required the seller to obtain the neighbouring owner's written agreement to relocate the fence and garden bed clear of the easement strip before closing, with the work completed and confirmed rather than promised.
4. Held back funds pending completion of the work. Because the fence relocation could not realistically happen in the days immediately before closing, we negotiated a holdback of roughly $8,000 from the seller's proceeds, released only once Abirami's lawyer confirmed the encroachment had actually been cleared. This gave the seller a real incentive to see the work through rather than let it become Abirami's problem after closing.
5. Documented the restored right of way for the record. Once the fence was moved, we obtained written confirmation and photographs showing the easement strip clear along its full registered width, so that Abirami would have a clean record if the same question ever arose with a future neighbour or a future sale of her own.

The outcome

The fence and garden bed were relocated roughly three weeks after the original scheduled closing date, which pushed Abirami's possession date back by about that long — a real cost in time and uncertainty, but a manageable one compared to the alternative. The $8,000 holdback was released to the seller once the work was confirmed complete, and Abirami took possession of a driveway that matched what was actually registered on title, with the full easement width clear and usable.

Had the encroachment gone unnoticed, Abirami would have closed on a property with a driveway that did not match its legal description, and no straightforward way to fix it without a dispute of her own with a neighbour who had already lived beside the narrowed strip for years. Resolving an encroachment after closing typically means starting a court application to enforce a right of way, a process that costs far more in legal fees and takes far longer than a pre-closing requisition, precisely because the other side has no similar pressure to cooperate once the sale has already gone through.

Instead, the problem was caught, quantified and fixed while Abirami still had a lever to require it — the closing itself. She moved into a home with a driveway that worked exactly as the registered easement promised, and never had to introduce herself to her new neighbour with a legal letter in hand.

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