Land survey most important document in real estate transaction

The sad tale of the Glenlake Ave. driveway featured in the Star late last month has focussed public attention on the difference between the Land Registry and the Land Titles systems of property ownership. It has underscored yet again the fact that the single most important document in any real estate transaction is the land survey — formally known as surveyor’s real property report.

As reported in the Star, the Perkovic family owns 104 Glenlake Ave. in Toronto’s west end, and the Roslins recently purchased the house next door at 106. In between the two properties is a wide driveway, leading to the back of both properties and to the Perkovics’ double garage on the west and the Roslins’ parking area to the east.
For 33 years, the Perkovics had been using it to access their garage. Unfortunately for them, they only own a small strip beside their house — not wide enough for a car to navigate. Recently, the Roslins blocked access by the Perkovics to their driveway.
Had the properties been registered in the old Land Registry system, the Perkovics would probably have acquired a right to the continued use of the driveway. In law, this is known as an easement by prescription, or a right of way resulting from continuous use for more than 20 years.
But since both houses were originally registered under the newer Land Titles system, the “squatter’s rights” rules do not apply and the Perkovics have no right of vehicular access to their double garage.
The Glenlake Ave. dispute can be compared to the case of Amar and Brown v. Fricker, which was heard in the Nova Scotia Supreme Court last October. The parties to the litigation own adjacent properties on Robie St. in Halifax. Title is registered under the Registry system.
The houses are separated by approximately 11 feet (Nova Scotia judges still use Imperial measurements). Eight feet of the driveway are owned by Mitchell Amar and Diana Brown, and three feet by their neighbours, Aubrey and Joan Fricker.
For many years Amar and Brown and the prior owners of their house enjoyed what one witness at the trial called “friendly mutual access to the space between the houses.”
The Frickers were not using their three-foot strip as a driveway. Recently, they built a fence along the property line, ending the ability of Amar and Brown to use the driveway. Although the remaining eight feet of the driveway which they owned was wide enough to allow a car to pass through, it was not wide enough to allow the car doors to be opened.
One person who tried to get his van up the narrow passage had to exit through the rear door because there was not enough room to open the passenger doors.
Eventually, the neighbours wound up in court. Amar and Brown claimed a right of way (also known as an easement by prescription) over the three-foot strip and an order requiring removal of the fence.
The Frickers, who built the fence, claimed damages for trespass over their three-foot strip before the fence was built.
After a two-day trial, Justice Suzanne Hood found that the usage of the driveway strip by Amar and Brown and the previous owners of their property was open, continuous since the 1980s, unobstructed and without the permission of the owners of the three-foot strip.
The judge ruled that Amar and Brown had an easement over the Fricker portion of the driveway, and ordered the Frickers to remove the fence.
Amar and Brown were awarded damages of $1,000 for interference with the driveway and $3,000 for costs.
The lesson from the Nova Scotia case and the Glenlake Ave. dispute in Toronto is for buyers to review the land survey and deed description with their lawyers very carefully before closing a home purchase. Knowing where the property begins and ends and what rights of passage are included or excluded is of critical importance.

Bob Aaron is a Toronto real estate lawyer. He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818. Visit the column archives at http://aaron.ca/columns/toronto-star-index.htm for articles on this and other topics.