Prescriptive Easements and Indefeasibility of Title

In our real property system landowners can, for the most part, absolutely rely on what the Certificate of Title says as a full and complete answer regarding rights to any particular piece of real property. Section 59 of Manitoba’s The Real Property Act says that very explicitly. It reads:

Conclusive evidence — title paramount (indefeasible)

59(1) Every certificate of title or registered instrument, as long as it remains in force and is not cancelled or discharged, is conclusive evidence at law and in equity, as against the Crown and all persons, that the owner is indefeasibly entitled to the land or the interest specified in the title or instrument.

There are, however, some exceptions to this. Situations involving fraud can be addressed notwithstanding what the title says. Short-term leases or registrations that occur after the date of the Certificate of Title are also exceptions. Another exception that arises with some frequency involves the subject of “prescriptive easements”.

On April 6, 2017, the Supreme Court of Canada rendered an important decision on this area: caveats, for rights of way or the like, including those acquired by prescription. The question considered by the Supreme Court of Canada was whether rights can be acquired by prescription against a new owner who took title to the land before the claimant’s right was asserted in court.

In this case, titled Ostiguy v. Allie, Ms. Allie alleged that she could use a parking space on her neighbours’ property, having become the owner of a limited right of use by prescription. When the neighbouring property was sold her new neighbours, Mr. Ostiguy and Ms. Savard, sought an injunction to stop her from using the space. Ms. Allie argued that she had acquired the parking space by prescription – even though she had never been given a judicial declaration to that effect before the new owners’ title was recorded in the land registry.

The court ruled in favour of Ms. Allie, affirming that she acquired the right to use the parking spot on her neighbours’ property and could set up this acquisition against her new neighbours based on prescriptive rights. That stood even if they were unaware of the situation when they purchased the neighbouring property, and even if Ms. Allie had not yet instituted proceedings to have her rights recognized at the time that they became the owners. The fact that the new owners had registered their ownership rights in the land titles registry did not change the reality that Ms. Allie and her family had possessed the parking space peacefully, continuously, publicly and unequivocally for more than the number of years needed to established the right.

A few notes: in Manitoba, section 58(1)(c) of The Real Property Act, expressly states that “any right-of-way or other easement, howsoever created” is not required to appear on the Certificate of Title to be valid. In addition to easements created by express agreement between landowners, this also includes easements created by prescription, similar to Ms. Allie’s right to the parking space in Ostiguy.

It also important to consider that for an easement to be created by prescription the right asserted must still be something that can form the subject matter of an easement, such as a right of way to cross over certain property. The right asserted cannot be a full right of possession, “squatters rights” (title by adverse possession) have been abolished in Manitoba.

Also of note: Ostiguy was a case in Quebec, which required continuous use of over 10 years. In Manitoba, for an easement to be created by prescription, there must be continuous, uninterrupted use for either 20 years or 40 years, depending on the circumstances. Aside from the difference in the number of years, this case would very likely apply in Manitoba.

On a final note, it should be mentioned that, in Ostiguy, the new neighbours likely had a cause of action against the seller. Both the purchase and acquiring rights by prescription were legitimate, legally. The recourse for a purchaser who is ultimately found to have restrictions on their ownership would be an action against a seller, who was aware of the encroachment on the land and failed to disclose it.