Murray-Leung et al. v. Dyck et al., 2025 ONSC 2071
In a decision that underscores the importance of historical property use and the doctrine of prescriptive easements, Justice MacNeil of the Ontario Superior Court has granted neighbouring property owners critical access rights over a disputed driveway. These rights were never formally negotiated or registered, but earned through decades of continuous use.
The Dispute
Louise and Leslie Murray-Leung own 58 Garner Road West in Hamilton, a landlocked property situated behind 56 Garner Road West, owned by Brian Dyck and Jodi Eastwood. The only access to the Murray-Leungs’ property is via a gravel driveway that runs through the Dycks’ land. According to surveys, this driveway has historically encroached onto the respondents’ property.
The relationship between the parties soured after the applicants objected to tree removal in 2018. Tensions escalated when the respondents attempted to build a detached garage requiring access over the driveway, which the applicants refused to grant. Subsequently, the respondents began placing obstructions along the surveyed property line, including stakes, armour stones, and other items that effectively prevented service vehicles, including septic tanker trucks, from accessing the Murray-Leungs’ property.
The applicants brought an application seeking either adverse possession or a prescriptive easement over the disputed portion of the driveway, as well as over an additional gravel parking and lawn area in front of their home.
The Legal Framework
The court examined two potential claims: adverse possession and prescriptive easement. Both doctrines are governed by the Real Property Limitations Act and limited by the Land Titles Act, which prevents such claims from arising after conversion from the registry to land titles system but preserves those arising from use prior to conversion. The properties were converted to Land Titles on January 20, 1997, establishing the critical date for analysis.
Adverse Possession Requirements
To succeed in adverse possession, a claimant must prove:
- Actual possession for an uninterrupted period of at least 10 years
- Intention to exclude the true owner from possession or use
- Effective exclusion of the true owner for that period
The possession must be open, notorious, peaceful, adverse, exclusive, actual, and continuous.
Prescriptive Easement Requirements
A prescriptive easement requires:
- A dominant tenement benefiting from the easement and a servient tenement subject to the use
- Different ownership of the properties
- Reasonable necessity for the enjoyment of the dominant tenement
- 20 or 40 years of continuous, uninterrupted, open, and peaceful use without permission (this is what the judge wrote, citing earlier vague authority from the Court of Appeal, but later implied that 20 years was sufficient)
The Court’s Analysis
Adverse Possession: Denied
Justice MacNeil dismissed the adverse possession claim for both the driveway and the parking area. Regarding the driveway, the court found that while the applicants’ predecessors used the disputed land, they never achieved the “actual possession” required for adverse possession. The evidence showed that both parties’ predecessors traversed the driveway freely, and the respondents’ predecessors maintained the adjacent property as their own, including gardening beside the driveway.
Critically, the court found no evidence of an intention to exclude the true owners, nor effective exclusion. The disputed land remained “open for use to the owners of both properties.” The respondents’ predecessors used it as a side yard, and the applicants’ predecessors as part of their driveway access.
The parking and lawn area claim failed for different reasons. Aerial photographs from 1960, 1978, and 1984 showed the driveway running straight past the respondents’ property without cutting into the corner where the current parking area exists. The evidence suggested this expansion occurred after 1984, which was insufficient to establish the requisite 10-year period before the 1997 conversion to Land Titles.
Prescriptive Easement: Granted
The prescriptive easement claim succeeded. The court relied heavily on photographic evidence spanning from 1953 to 2019, showing the driveway in essentially the same location throughout. Critically, a septic service provider testified to servicing the property “for decades (since 1960s and 70s)” using standard-sized vacuum tanker trucks measuring 31 feet long and 9-9½ feet wide including mirrors.
Former owner P. Morrison, who owned the property from 1981 to 1996, testified that various large service vehicles, such as oil trucks, snowplows, 18-wheelers, water trucks, and septic trucks, regularly traversed the driveway. He confirmed he never sought or received permission to use the disputed land, stating it was “a practical consequence of the then-as-now location of the driveway.”
The court found this evidence established acquiescence by the respondents’ predecessors to the use of the disputed land since at least 1977, which was well beyond the 20-year requirement. The physical layout of the property, the obvious and continuous vehicular use, and the absence of any objection or exercise of control by previous owners shifted the evidentiary burden to the respondents, who failed to provide evidence of permission being granted or steps taken to prevent the use.
Practical Implications for Transactional Lawyers
This decision offers several important lessons for real estate practitioners:
Due Diligence on Landlocked Properties: When acting for purchasers of landlocked properties, don’t assume historical access arrangements will continue indefinitely without formal legal rights. While this case ultimately favoured the landowners with historical access, litigation was required to establish their rights and was an expensive and uncertain process that proper planning could have avoided.
Survey Interpretation: Surveys showing encroachments should trigger immediate inquiry into the history and nature of the use. In this case, surveys obtained by both parties in 2018 and 2021 showed the encroachment, but neither party fully appreciated the legal implications until conflict arose.
Timing Matters: The conversion from registry to land titles system creates a critical cutoff date. Rights claimed through adverse possession or prescription must be established based on use prior to conversion. Practitioners should always determine the conversion date and carefully investigate the property’s use history before that date.
Evidence Preservation: The applicants’ success hinged largely on aerial photographs and the testimony of a long-term former owner and service provider. When advising clients on properties with potential easement issues, recommend documenting current use patterns, preserving historical evidence, and obtaining affidavits from long-term users while such evidence remains available.
Acquiescence vs. Permission: The distinction between neighbourly tolerance and permissive use proved critical. The respondents couldn’t point to any affirmative grant of permission, and the decades of unchallenged use by various service vehicles created a presumption of right rather than mere tolerance.
Amendments at Trial: The court permitted the applicants to amend their claim at the hearing to include the parking area, though this expanded claim ultimately failed. While the court allowed the amendment to avoid duplicative proceedings, this approach carries risks and increases costs.
The Remedy
The court granted a prescriptive easement over the disputed portion of the driveway and ordered the respondents to remove obstructions interfering with the easement. The Land Registrar was directed to amend the property titles to reflect the easement, with provision for obtaining a survey if the court’s description proves insufficient.
Importantly, the court’s order prohibits the respondents from interfering with the applicants’ use of the easement and specifically requires removal of items already placed that obstruct access.
Conclusion
Murray-Leung v. Dyck demonstrates that while Ontario law provides remedies for property owners whose access depends on crossing neighbouring lands, establishing such rights through litigation is complex, fact-intensive, and expensive. The decision turned on historical evidence spanning more than 60 years, including aerial photographs, surveys, and testimony from former owners and service providers.
For transactional lawyers, the key takeaway is that access arrangements depending on informal historical use create significant risk for all parties. When representing purchasers of landlocked properties or properties with questionable access, strongly advise formalizing access rights through express grants, easements, or rights-of-way before closing. When representing vendors, disclose known access issues and historical use patterns to avoid post-closing disputes.
The cost of negotiating and registering a formal easement at the time of purchase or severance is invariably less than the cost of establishing prescriptive rights through litigation—even when, as here, the litigation ultimately succeeds.
