Do you have the right to use a mutual driveway?
There was an article in the Toronto Star recently about a couple who purchased a home in Toronto. After closing, they objected to their neighbour continuing to use a driveway located on their property in order to access the garage at the back of the neighbour’s house.
Many older properties in older neighbourhoods do not have parking at the front of the house, but in the rear. In this case, accessing the garage required driving down a driveway sandwiched between their house and the abutting owner’s house.
According to the new owner, there was no right of way registered on title relating to use of the driveway. On the other hand, the neighbour alleged that he has been using the driveway to get to his garage for 33 years. Who’s in the right?
The new owner had a survey commissioned after closing which didn’t disclose any right of way. The survey did disclose that the driveway was located -mostly, although not entirely- on the new owner’s property.
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Generally, if someone has been using a right of way in an open, uninterrupted way for a long period of time, they may have acquired possessory rights to continue using it, depending upon the land titles system which is in place in that jurisdiction. Although it’s possible for someone to enjoy a right of way to use a driveway even if it’s not registered on title, this right can be hard to establish.
If you’re going to go to the trouble of paying for a new survey, the time to get this done is before closing, not afterwards. Had the new owners done so, they would have known that the driveway was not, in fact, a mutual driveway at all. From a practical point of view, if the property cannot accommodate parking anywhere else other than the rear yard, it’s not clear if the new owners could simply refuse to accommodate any kind of arrangement to allow access to the backyard. Having had the survey done ahead of time would have given the prospective owners an opportunity to determine if going ahead with the purchase, in light of the driveway issue, was worth it.
This blog is intended as general information only and does not constitute legal advice. If you need legal advice, please speak to a lawyer.
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