This is the third in a series of articles on rights of access.
The first article described how public roads can be established in BC. The second started an account of how public or private rights of access can be established by continuous opposed use, in particular proprietary estoppel to create an easement right, and common law dedication to establish a public road.
In this third article, we will look at rights acquired by prescription or adverse possession, and also the “implied easements” – easement of necessity, easements giving effect to intended use, and easements by implied grant or apparent accommodation.
You won’t come across these rights or claims every day. In fact, they are unusual and relatively obscure. They derive from old English property law.
While most of our laws come from the English legal system, land law in British Columbia is also governed by the Land Title Act (BC) which establishes a “Torrens” system of registration of title and interests in land, and a state-guaranteed “indefeasible” title, in other words a title that can’t be taken away from the owner by someone claiming an historic interest in the property. “Torrens” is the name of the originator of the system, Sir Robert Richard Torrens, the third Premier of South Australia. British Columbia, Saskatchewan, and Alberta all have a Torrens system of state-guaranteed indefeasible title, in which the title of record in the Land Title system determines the identity of the owner.
A central issue with rights acquired by prescription and the implied easements, is that they do not mesh easily with our Torrens system of registration and state guaranteed title. British Columbia’s Court of Appeal has considered this issue, see discussion of cases, below.
Prescription. “Prescription” means the acquisition of a right to own, or to traverse, land, established by continued use by the person acquiring the rights, in the face of ownership by another.
Prescription is a very old English legal concept, dating back to 1066 AD or even before. When applicable, it produced a private access right, an easement or right of way or, in some cases, ownership. The concept evolved through case law so that if, for twenty years or more, someone used land, whether living on it or merely crossing someone else’s property, uninterrupted, without force, without secrecy, and without permission, then that person was entitled to a permanent right to continue use of the right of way or the area used by that person.
“Without force” means without any protest from the owner. “Without secrecy” means that the owner was aware of the use or could have known about the use. “Without permission” means exactly that – if the owner gave permission for the use, then no rights could be established through prescription.
The Supreme Court of Canada in Nelson (City) v. Mowatt, a 2017 decision said that “the act of possession must be open and notorious, adverse, exclusive, peaceful, actual and continuous”.
“Squatters’ rights” is one of the phrases used to describe rights acquired by prescription – continued use for twenty years or more, uninterrupted, without force, without secrecy, and without permission.
Since British Columbia is a Torrens jurisdiction where the title is to determine the identity of the owner of land, the right to acquire an interest in land by prescription was abolished in British Columbia effective May 1, 1970, by what is now section 24 of the Land Title Act as to deeded land, and section 8 of the Land Act as to Crown land.
Other provinces have not abolished rights acquired by prescription, also called “adverse possession”.
The ability to acquire rights through prescription was abolished by legislation in British Columbia. A claim for a prescriptive right for activity starting after July 1, 1975 cannot be successful. Unless the claimant proves at least 20 years of adverse possession before July 1, 1975 (or May 1, 1970), or in the case against the Crown, 60 years before those dates, the claim cannot stand.
Such a claim obviously faces considerable challenges of proof, as shown in the Nelson decision. There, a lack of evidence of continued possession of the claimed property between 1916 and 1920 (this period fell within the 20 year limitation in that case) was fatal to the Mowatts’ claim, although they had proved possession both before and after that period.
So, while the concept of prescription is interesting and definitely remains on land owners’ minds, it has extremely limited application in British Columbia in 2017, less every year that passes.
Implied Easement. There are several categories of implied easements, including easements of necessity, easements giving effect to intended use, and easements for accommodation or convenience. The distinctions among them are murky and since the British Columbia Court of Appeal has limited their use, I have chosen not to differentiate them, beyond “easement of necessity” and “other”.
In our examples, below, let’s imagine that A owns has two parcels of land, parcel 1 and parcel 2, and transfers parcel 2 to B. At the time of the transfer, A has used parcel 1 to gain access to parcel 2.
Easement of Necessity. If the transfer of parcel 2 by A to B leaves either parcel 1 or parcel 2 without a legally enforceable means of access; or a planned use of parcel 1 or parcel 2 cannot be fulfilled without an easement over the other parcel, then an easement of necessity is a possibility. The easement of necessity may be granted over either parcel in favour of the other, not just the parcel which A transferred to B.
The easement must be necessary for the enjoyment of the benefitting parcel, i.e. the parcel needing the easement must be landlocked at the time of the transfer of parcel 2 from A to B.
While an easement of necessity is rare, there is still some potential for it to exist, particularly where the Crown transferred land without access from the Crown to an owner. If there is a notation on title confirming access is by air or water only, or that the parcel is without access, there will be no easement of necessity.
An implied easement for enjoyment of a property is established at the point when A transfers parcel 2 to B. It is an easement over the parcel that A retains, parcel 1 in our example, in favour of the parcel that is transferred to B, parcel 2. The use of parcel 1 which benefits parcel 2 must be continuous and apparent, must be necessary for the reasonable enjoyment of parcel 2, and the use must have existed at the time of transfer of parcel 2 to B.The British Columbia Court of Appeal has severely limited the opportunity to assert an implied easement. The Court has said that if there is an implied easement, it is limited to the period during which A owns parcel 1 and B owns parcel 2. The transfer of either parcel to a third party, ends the implied easement.
In Babine Investments Ltd. v Prince George Shopping Centre Ltd. (2002) and Roop v. Hofmeyr (2016), the Court of Appeal ruled that the implied easement for enjoyment of a property is limited to the original parties. When either owner transfers his or her parcel to a new owner who is a bona fide purchaser—unless that purchaser has participated in a “fraud”—the easement right ends. The Court based its decision on section 29 of the Land Title Act, which says that the registered owner of land is not affected by notice of an unregistered interest (such as the implied easement).
(Note the reference to “fraud” and see my previous article on proprietary estoppel, included in Part I of “Rights of Access from Unopposed Use”.)
Rights acquired by prescription are nearly dead in British Columbia, as are implied easements, except for an easement of necessity for a landlocked parcel, and even there, the likelihood is that unless the owner of the other parcel is the Crown, an easement of necessity will not be available.