DON’T FOOLISHLY FORFEIT PROPERTY RIGHTS

“Would you mind if we cleared the back part of your yard for a driveway to our garage?,” asks your neighbour.  You don’t mind.  It’s just full of blackberry bushes, and you don’t use it.  Besides, you want to be a good neighbour.  In a few years, you’d like to build a storage shed there.  But you can worry about that later when the time comes, right?

Wrong.

If you don’t write down your understanding, you run the risk of unwittingly giving your neighbour rights to your property.

Consider the case of Mr. and Mrs. E. and their neighbours.  Between them, they owned 10 residential lots in a subdivision on an island off Vancouver.  Each lot had a parking pull-out and a footpath or set of stairs from the road.  But driveway access was impractical because their lots rose steeply from the road.

Their homes actually sat closer to a lane owned by the developer of the subdivision.  For a number of years, the developer permitted Mr. and Mrs. E. and their neighbours to use the lane to access their homes.  Over time, many of the homeowners built driveways from the lane to their homes or reconfigured their front doors to face the lane, and one house had a new garage accessible only from the lane.

However, the president of the development company later started denying access to the lane by placing boulders on it.  The problem was that the way the lane was configured effectively prevented the developer from subdividing approximately five acres of its property.  The developer refused to look after the area’s upkeep or allow the affected homeowners to maintain the lane.

Mr. and Mrs. E. and the other affected property owners took the developer to court.  They argued that they had an “easement” or legal right to use the lane forever.

The B.C. Supreme Court said that the homeowners had a “licence” instead – an equitable right to use the lane, which could be withdrawn on reasonable notice.  The court gave the developer six months to come up with a new reconfiguration of the lane that would affect the least amount of its developable land.  If acceptable, the homeowners would then pay for the costs of building the new lane and its upkeep.

Normally, a licence is permission given to someone else to make use of your property that you can take back.  But the court commented that if the person making use of your property relies on your permission to their detriment (e.g., by spending money, say, to build a tool shed that sits partly on your property), then you, the owner, shouldn’t be allowed to change your mind later.  The permission you gave could become a property right that is irrevocable and similiar to an easement.

So, if you decide to allow your neighbour to build a driveway through your property, make sure you can withdraw your permission later.  You don’t want to unknowingly give away your property rights.  You should consult your lawyer before entering into any agreement of this kind or if you need help resolving a property dispute.

This column has been written by Janice Mucalov LL.B as part of “You And The Law”. It provides information only and must not be relied on for legal advice. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer.

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