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 easements, and whether the physical reality on the ground still matches them.

Because the driveway was shared, the arrangement ran both ways: Abirami's future property held a right of way over a defined strip of the neighbouring lot, and the neighbouring property held a matching right of way over a strip of hers, so that both households could reach their garages. Reviewing the description alongside a current survey, however, showed something the listing had not mentioned: a wooden fence and a small garden bed, installed by the current owner on the property Abirami was buying, extended roughly a metre into the strip that the neighbouring property had a registered right to use. It was not blocking the neighbour's access completely yet, but it was narrow enough that any further encroachment, or simply a car parked at the wrong angle, would leave the neighbour physically unable to use a right of way they were legally entitled to.

This is the kind of problem that easements are especially prone to. A right of way exists on paper, but nothing physically stops the owner of the burdened lot 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, and it does not stay a private problem for whoever built the fence. If it was still there after closing, the neighbour's obvious next step would be to demand its removal, and if that request went unanswered, to bring a court application for a declaration confirming the right of way and an order requiring it restored — naming Abirami, as the new registered owner, as the party who had to answer for an obstruction she had never built herself. Ontario's Limitations Act, 2002 gives a party time to discover a problem before the clock starts running against them, which meant the neighbour would very likely still have been entitled to sue at any point after Abirami took title, regardless of how long the fence had already been sitting there.

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 fence that violated a neighbour's registered right of way, and stepping into the position of defendant in a dispute with someone 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 an older survey of the lot, we had the boundaries of the easement strip checked against current measurements, confirming precisely how far the fence and garden bed on Abirami's future property extended into the right of way registered in the neighbour's favour. Precision mattered here — a vague sense that something looked off would not support any negotiation or legal step that followed, and would not tell Abirami how exposed she actually was.
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 Dante to fix a problem he had created, rather than close and leave it to become her exposure, would have been far weaker.
3. Required written confirmation that the fence would be relocated clear of the right of way. We advised Abirami not to accept a verbal assurance that the fence would eventually be moved. Instead, we required Dante to arrange for the fence and garden bed to be relocated clear of the easement strip before closing, with the neighbour's written confirmation that their access was unobstructed, rather than a promise Abirami would be left to enforce herself as the new owner.
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 Dante a real financial incentive to see the work through rather than let an unresolved obstruction become a lawsuit against Abirami after closing.
5. Documented the cleared right of way for the record. Once the fence was moved, we obtained written confirmation from the neighbour 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 again, whether with that neighbour or on 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 Dante once the work was confirmed complete, and Abirami took possession of a property whose driveway matched what was actually registered on title, with the neighbour's easement strip clear and usable along its full width.

Had the encroachment gone unnoticed, Abirami would have closed as the registered owner of a property that was already obstructing a neighbour's legal right of way, with no way to undo that exposure simply by not having built the fence herself. Fixing an obstruction after closing usually means the burdened owner facing a court application brought by the party whose access was blocked, seeking a declaration that the right of way exists and an order requiring it restored — a process that costs far more in legal fees and takes far longer than a pre-closing requisition, and one where the new owner, as defendant, has no similar leverage to make the other side cooperate on a schedule.

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 easements promised on both sides, and never had to answer a claim over an obstruction she had not built, brought by a neighbour she had not yet met.

What you can learn from this