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Was Owner-Built Pool and Deck on Town's Easement Prohibited?

In this case, the owners' residential property was located in the Town of Oakville, and was subject to a 10-foot wide easement that had been registered in 1972. It accommodated an underground hydro wire that provided electricity to a nearby property.

Under the wording of the registered easement, the owners granted the Town the right to construct, operate, maintain, replace, and repair underground sewers, drains, pipes and related services. Conversely the easement stated that the owners reserved their own right to "use the surface of the said land for any purpose" provided it did not "conflict with" the rights afforded to the Town. It specifically excluded "the planting of any tree and the erection of any building or structure."

The owners were aware of the easement when they bought the property in 2012, but thought it had been abandoned or had never been used. In 2014, they installed a pool and surrounding pool deck on the land that was the subject of the 10-foot easement. They did so without obtaining the necessary building permit.

Having later learned of the existence of the owners' completed pool and deck structure, the Town applied for a court declaration that its easement rights over their property had been encroached-upon. The Town also applied for an injunction, and for a mandatory order requiring the owners to remove the pool and amenities.

The Town was successful in obtaining the orders sought. Perhaps ironically, this was despite the owners having persuaded the court that the pool and deck did not substantially interfere with the Town's easement rights. As the court observed, the owners had "won that battle", but the Town effectively "won the war".

The owners' failed argument relied on the thinly-minced interpretation of the easement's wording: That as long as they did not interfere with the Town's rights, they could still plant a tree or erect a building or structure on the easement area. In their view, the threshold was whether the Town was impacted – if not, then on their reading of the easement description they were entitled to build on the strip.

The court rejected this interpretation as being devoid of "common sense". To accept it would mean that the easement description's reference to trees, buildings and structures was wholly superfluous; otherwise the wording could have ended simply with "which does not conflict with the Town's rights".

Instead, the plain wording conveyed a basic two-part message: (1) The owners were prohibited outright, and under any circumstances, from using the surface of the easement strip for any purpose that conflicted with the Town's rights; and (2) to avoid confusion, this meant they were prohibited under any circumstances from constructing any building or structure, or planting any tree, on the easement strip.

The court summed it up plainly: "In other words, the planting of a tree or the erection of a building or structure on the Easement land is not permitted, period."

With that conclusion in mind, it was immaterial that at the time the owners added their pool and amenities, there were already existing and pre-approved structures on the easement area (namely a shed and carport) as well as two large trees. There was also nothing to stop the Town from insisting on its easement rights after-the-fact, since there was no evidence the owners had – to the Town's knowledge – acted to their detriment.

The owners had contravened the express terms of the easement description by installing the pool and deck. They were ordered to remove the encroaching structures at their own expense, and to remediate any damage to the easement area itself. See: Town of Oakville v. Sullivan, 2020 ONSC 1419.