Please read the disclaimer before perusing the following article.
written 1997, published in Beef in B.C. January/February 98
Figuring out whether a neighbour has a legal right to cross your property, can be a complicated task.
Let’s suppose that a roadway actually exists and your neighbour has been using it.
First question is, is the road a public road? This question alone is hard to answer. If there is a disagreement about whether a road is public or private, it is an expensive proposition to sort out the situation.
If there is no suggestion that the roadway is public, does your neighbour have a private right to use the roadway?
First, of course, you look at your title to the property to see if there is a registered easement allowing your neighbour’s use. If there is no easement, that should end the discussion, right?
Wrong. A new case decided by Judge Frank Maczko of the Supreme Court of British Columbia says that, in the circumstances in that case, one landowner can have an irrevocable licence to cross an adjacent landowner’s property.
The case is Pilcher and others v. Shoemaker, (Vancouver Supreme Court Registry A964077).
The case involves three lots at Middlepoint, Halfmoon Bay, BC. The lots owned by the claimants are on the water and do not have access to the highway. They were formerly Crown leases with water access only. The defendant owns the property between the claimants’ lots and the highway.
In 1980, the then-tenants of the claimants’ lots made an agreement with the then-owners of the defendants’ lot, to the effect that the claimant lot owners would construct an access road and for doing so, would have the free use of the road in perpetuity. This agreement was to be renegotiated if the then-owners of the claimants’ lots sold their lots to someone else.
The agreement is worth quoting:
AGREEMENT RE: PRIVATE ACCESS ROAD BETWEEN GORDON WILSON, ROY STIBBS AND WALTER WALMAN
WHEREAS Stibbs and Walman are leaseholders of land adjacent to Wilson and desire the use of a road through Wilson’s property:
THEREFORE Stibbs and Walman agree to pay the cost of construction of such road, excepting the cost of a bridge on Wilson’s property.
IN RETURN, Wilson grants to Stibbs and Walman the free use of this private access road in perpetuity.
FURTHER, Stibbs and Walman agree to renegotiation of this agreement in the event of either selling their lease to another party.
IT IS AGREED that maintenance of this private access road shall be by voluntary effort and no monies shall be expended without the agreement of all parties.
IT IS AGREED that the road is to be used for private access for the quiet enjoyment of all parties.
The agreement was dated and signed, and had attached a diagram showing the approximate location of the road. All the parties to the agreement used the road. The approximate value of the work done to the road was $30,000.
The agreement is not an easement and was not registered, or registerable, at the Land Title Office.
There were some transfers of the claimants’ lots to family members. In each case, Wilsons agreed that the access agreement would continue. In 1993, one of the claimants was considering the purchase of the leasehold lot, and Wilsons told that claimant that he would have access in perpetuity while he owned that lot. That claimant did go ahead with the purchase of the lot.
Another claimant built a house on his lot after having received an assurance from Wilsons that access would continue according to the terms of the agreement. The claimants maintained the road.
Then (as was well documented in the news media at the time), unhappy differences arose between Gordon Wilson and his wife. As part of the settlement agreement, Mrs. Wilson received title to the lot. She sold it to the defendants in this lawsuit, having mentioned the access agreement and given the defendants a copy of it.
The defendants denied the access agreement and eventually put a locked gate on the roadway. The claimants sued for an injunction to prevent the defendants from denying access.
Judge Maczko decided that Wilsons (the owners previous to the defendants) had given an irrevocable licence to the claimants.
Although in law a licence is different from an easement, in practical terms the claimants continue to have the right to cross the defendants’ lot. This right extends to other family members who can become owners of the claimants’ lots, but can be terminated if and when the claimants sell their lots, according to the terms of the original agreement.
One of the main reasons why the judge decided the case in this way, is that the claimants had spent money on the road acting in good faith and relying on the agreement and on Wilsons’ assurances.
Normally an unregistered interest like the access agreement would not bind the defendants, who bought the property from Wilsons. The judge said that the unregistered interest did apply to them, because they were fully aware of the existence of the agreement. They could not then turn around and use the land title registration system to rid themselves of the claimants’ interest.
This case is a little unusual in that there are not likely to be many similar written agreements for access. Many verbal agreements about access exist. It is possible that a judge would reach the same result if a verbal agreement could be clearly proved.
The case is a warning that if:
you will be legally obliged to continue with that access agreement, whether it is registered at the Land Title Office or not.
The case confirms that you cannot merely rely on the state of title to define all possible rights of access to a particular piece of property. There is a potential that an unregistered interest can bind subsequent owners who are aware of the unregistered agreement.