GOOD FENCES MAKE GOOD NEIGHBOURS – A SERIES ON NEIGHBOURHOOD DISPUTES – VOLUME 3

When we last left off with the Hatfields and the McCoys, they had just finished yelling at each other about Milo (the dog that the Hatfield’s may or may not have been harbouring) having bitten Mr. McCoy.

 Well, they are at it again. Only moments after Mr. Hatfield and Mr. McCoy had their yelling match resolved by the cool headed Mr. Van Sickle, Mr. McCoy was up in arms about how Ms. Hatfield had parked her car on his property.

 “Get your car off my property, Hatfield! Not only do you have the nerve to let your stupid dog bite my leg, you now have the audacity to park your car on my property!” shouted Mr. Hatfield.

 “That isn’t your property, McCoy”, stated Mr. Hatfield. “As you can clearly see, my wife has parked on our driveway. Are you seriously implying that you own our driveway?”

 Mr. Van Sickle, who was all the while present during this exchange, just stood by quietly, shaking his head in disappointment.

“Before I decided to cut your stupid tree, I got a survey done, and lo and behold I discovered that my property line actually includes “your” driveway”.

 “Don’t you make air quotes at me McCoy”, bemoaned Mr. Hatfield.

 “O.K., this is just getting ridiculous”, said Mr. Van Sickle. “You two really need to stop all this fighting. Now, take a deep breath, Mr. McCoy, because you may not like what I am going to say. The reality is that in Ontario someone can acquire a right to use another person’s land by the sheer fact that they, or the previous owners of their land, used a neighbour’s property for an extended period.”“That’s absurd”, screamed Mr. McCoy. How can Hatfield have a right to go on parking on my land when I forbid it, and especially when he has not paid for this so called “right”?”

 “Again with the air quotes, McCoy”, cried Hatfield.

 “Well”, replied Mr. Van Sickle, “welcome to the wonderful world of prescriptive easements. You see, in Ontario, a person can acquire an easement, for example, a right park his/her vehicle on another’s property, if he can prove that he or his predecessor(s) in title used the driveway “as of right” for at least twenty (20) consecutive years before the land was registered under the Land Titles system. To use a property “as of right” means that the use could not have been secretive, nor objected to, and not carried out with the consent of the owner of the property. Mr. Hatfield, you need to appreciate that this is not necessarily an easy thing to prove.”

 “I seem to recall my lawyer telling me that my property was registered in the Land Titles system back in 1998”, said Mr. McCoy. “If this is the case, then would Hatfield have to prove that the previous owners of his property used my driveway from at least 1978 to 1998?”

 “Yes”, responded, Mr. Van Sickle.

“Good luck with that, Hatfield!” bellowed Mr. McCoy.

“I don’t need luck, McCoy”, snarled Mr. Hatfield. “My parents owned this property before me. I grew up in this house. I have pictures showing us using this driveway since the mid-1960s. All this time Mr. Wilson owned your house, and he never objected to our using the driveway, and he never gave us permission either!”“It would seem that you may have a case, Mr. Hatfield,” observed Mr. Van Sickle. “Maybe the two of you should each retain a lawyer to sort out this issue.”

 Suddenly, there was the sound of a large splash, followed by a scream coming from the Hatfield’s back yard. Mr. Hatfield immediately ran to his back yard and found one of Mr. McCoy’s sons, Noah, crying in the shallow end of his bean-shaped pool.

“I think I broke my ankle”, shouted Noah.

 As it turned out, Noah had decided to climb the Hatfield’s’ fence and trespassed onto the Hatfield’s property by jumping into their pool. Unfortunately, he jumped into the shallow end and broke his ankle.

 “Hatfield, your pool is a menace”, yelled Mr. McCoy. “I told you to put up a higher fence. Now look what you did. You pool was so alluring that my son simply could not resist the temptation of your cool, blue waters. I am definitely going to sue you for this.”  Mr. Van Sickle simply sighed.

 If you have any questions relating to any of the above, please do not hesitate to contact Dennis Van Sickle at dvansickle@kmblaw.com or (905) 276-0413. 

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