Can an Owner Build an Addition on a Right-of-Way?

The Ontario court decision in Weidelich v. De Koning provides important insight into the specific rights and obligations of private property owners whose land is subject to a right-of-way in favour of another.

The matter involved a dispute between the neighbours in a modern residential townhouse development.  On one of the townhouse properties there existed a reserved right-of-way, confirmed by deed, which allowed the adjacent owners to access their garages located at the rear of their homes.   However, the owners of that particular townhouse were building a large, three-story addition with balcony and patio.  Although it was being built mainly on the unreserved part, a portion of the addition would obstruct part of the right-of-way on a permanent basis. The result was that for at least some of the adjacent landowners, it would be much more difficult – though not impossible – for them to drive their vehicles to their rear garages.

The neighbours sued the owners of the townhouse, claiming that the completed addition would create a “real and substantial interference” – or at least a theoretical one – with the rights that they all enjoyed by virtue of the right-of-way.

The court considered the scenario.  Although there was some general law to suggest that any substantial and permanent structure over a right-of-way amounted to a “substantial interference”, it was important to consider the specific facts.  Here, it was noteworthy that the right-of-way had been created by an express grant which established its nature and extent.  The wording of that grant made it clear that it was created for a limited purpose:  to allow the adjacent owners to access their garages and the street with their vehicles.   This meant they were to be afforded only a “reasonable opportunity” to exercise those specific rights, and could complain only about those obstacles that factually and substantially impeded them.  As the court put it:

Not every interference with an easement, such as a right of way, is actionable. There must be a substantial interference with the enjoyment of it.

The court then considered the evidence, including diagrams and video evidence.  Here, it was still possible for vehicles, including large delivery trucks, to travel along the remainder of the right-of-way that had not been blocked by the addition.    As such, the court found that the addition did not violate the adjacent owners’ property rights.  See Weidelich v. De Koning, 2013 (ONSC).