Zanussi v. Roosen, 2011 ABQB 751

Court of Queen ’ s Bench of Alberta Citation: Zanussi v. Roosen, 2011 ABQB 751 Date: 20111130 Docket: 1001 17101 Registry: Calgary Between: Larry M. Zanussi and Marie T. Zanussi Plaintiffs - and - Carla Roosen Defendant _______________________________________________________ Reasons for Judgment of K.R. Laycock, Master in Chambers _______________________________________________________ [ 1 ] What began as a minor dispute between adjoining property owners has spilled over to affect the entire community. The plaintiffs have owned their property on Bow Crescent in North West Calgary since February 10, 1978.

The defendant acquired the adjoining property, to the west of the plaintiff’s property, on April 19, 1996. Fifteen properties in the subdivision are subject to an identical easement which grants a benefit to each adjoining lot owner. A copy of the drawing of the neighbourhood is attached as

Schedule “A”. [ 2 ] The easement in question grants the plaintiffs the right to use a 5 foot strip of the defendant’s lot for the purpose of a patio, lawn, garden or any one of them. [ 3 ] The plaintiffs are suing the defendant because, it is alleged, the defendant has breached the terms of the easement by placing a garden shed on the easement lands. The plaintiffs claim damages and an order requiring the defendant to remove the garden shed.

[ 4 ] The defendant acknowledges the terms of the easement and alleges in her statement defence that prior to her acquiring an ownership interest in the lands, a fence had been erected from the front property line along the easement line for approximately 2/3 of the distance to the back of a lot and then jogs eastward before it continues running to the back of the lot along the property line. The defendant acknowledges making improvements on the easement lands located on her side of the fence on the back one third of her property. The defendant denies that such activity has caused the plaintiffs any damage. [ 5 ] Based on an agreed statement of facts, the defendant applies for partial

summary judgment and a declaration that the easement is invalid. Because of the potential that such a decision would affect the rights of all other property owners in the area, notice of this application was delivered to all owners. Numerous neighbours appeared at the application and were given an opportunity to have the matter adjourned to instruct independent counsel to be present and make representations on their behalf. The neighbours present made comments about the proceeding, but chose not to obtain independent counsel. Is the Easement Invalid?

Defendant Argues: [ 6 ] The easement in this case uses the following words: Each Easement is a granted in perpetuity of a full right and liberty for the Grantee and his successors in Title, in connection with his use and enjoyment of his lot and his residence situate thereon, subject to the reservations hereinafter set forth, to exclusive full and free use of the easement Land for the purpose of a patio, lawn, garden or driveway, or any one of them.

Reserving unto the Grantor the right to have eaves, roof and footings overhanging the Easement land, with full power, license and permission, at any reasonable time, to enter upon the Easement land for the purpose of repairing, painting, altering and maintaining the side of the Grantor’s residents which abuts the easement land as there shall be occasion and subject to the following, which are covenanted and agreed to by the Grantee, namely: (

a) That the rights and easement hereby granted shall extend only to the use of the surface to the extent necessary for the permitted uses, (

b) That the grantee will, at his own expense, forthwith landscape the Easement land and may enclose the same with a suitable fence and at all times at his expense keep and preserve the fence, improvements and landscaping in proper repair and condition, (

c) The grantee shall and will indemnify and save harmless the Grantor from and against all actions, claims or damages which may be brought against the Grantor at any time by reason of the use of the easement land by the Grantee. It is mutually understood and agreed that:

(1) The Grantor will not place any fence, wall, trees, shrubs or other obstruction upon the said easement lands, that would in any way restrict pedestrian or vehicular access along the Easement from the street upon which any said lots abut to the rear of the said lot,...... [ 7 ] The defendant’s first argument is that the easement grants too many rights with the result that it is an invalid the easement. “Easement” is not a defined term in the Land Titles Act . An easement is a right in alieno solo - a property right that is enforceable against the land of another. In the text, E.H.

Burn and J Cartwright, Cheshire and Burn ’s The Modern Law of Property 17 th edition, at pp 583 and 585-586, the authors conclude that an easement cannot grant “rights to the land itself, but only rights over or in respect of the land”.

[ 8 ] Black’s Law Dictionary defines an “easement”as: An interest in land owned by another person consisting of the right to use or control the land, or an area above or below it, for specific limited purpose (such as to cross it for access to a public road). [ 9 ] In Shelf Holdings Ltd. v. Husky Oil Operations Ltd. 1989 ABCA 30 , at para.17 the Alberta Court of Appeal referred to the Court of Appeal of England decision in Re Ellenborough Park, Re Davies, Powell v.

Maddison [1956] 1 Ch. 131 at 163, [1955] 3 All E.R. 667 at 673, which stated that the necessary characteristics of a proper easement included: (1) there must be a dominant and servient tenement; (2) the easement must accommodate the dominant tenement; (3) the dominant and servient owners must be different persons; and (4) the easement must be capable of forming the subject matter of a grant. [ 10 ] In this matter, the defendant bases her argument on the fourth characteristic. The Court of Appeal of England in Re Ellenborough broke the fourth characteristic into three questions: 1.

Is the right too wide or vague? 2. Is the grant inconsistent with the proprietorship or possession of the alleged servient owner? 3. Is it a mere right of recreation without utility or benefit? [ 11 ] In the Shelf Holdings Ltd. , decision the Alberta Court of Appeal considered what has being granted by the easement and what has being reserved. At paragraph 34 of the decision the court adopted the observations of Albert J. McClean in his

article entitled “ The Nature of An Easement ”at page 51 where the author stated in part: As was pointed out earlier, it follows from the general nature of the recognized interests in property that an easement cannot amount to a claim quite at variance with the proprietary rights of the servient owner. On the other hand, it is also quite obvious that an easement does to some extent detract from those rights. A right-of-way cuts down the servient owners right to exclude people from his property or to develop it as he pleases; and the negative easement such as light, also hinders development.

The issue in fact is the perennial one of drawing the line, of deciding when the point has been reached that the right in question detracts so substantially from the rights of the servient owner that it must be something other than an easement. [ 12 ] In the Shelf Holdings Ltd. decision, the court determined that Husky Oil had only received easement rights which “did not detract from the rights of the servient owner with the force required to raise the grant above the status of an easement”.

The grant was free of words “appropriate” and “exclusive use” or words of that connotation. (para. 44) [ 13 ] The defendant refers to the statement of Master Funduk in 518002 Alberta Ltd. v. Edmonton (City) [1996] A.J. No 591 at para. 47 : A point can be reached where what is granted raises the grant above the status of an easement. The grant could ineffectively (sic) be a de facto subdivision of the land or at least a joint user of part of lot 13. [ 14 ] The defendant further refers to the book Principles of Property Law 5 th ed. by Professor Ziff at p. 379, where he states that an easement:

.... cannot confer a right to possession or control of the servient lands to an extent that is inconsistent with the possessory rights of theservient owner. As has been said, “[t]here is no easement known to the law which gives exclusive or unrestricted use of a piece of land.A grant of the exclusive or unrestricted use of land beyond all question passes the ownership of that land. [15] Counsel also notes an interesting series of decisions involving a easement dispute in Vancouver. The easement instrumentgranted the right to construct a swimming pool and other related improvements on the easement land.

In the first action, the courtdetermined that the easement could not form the subject matter of a grant as it interfered with the grantee’s right of possession andproprietorship over the easement lands. The British Columbia Court of Appeal overruled the decision, finding the instrument had createda valid easement. They concluded that the instrument did not give the grantee use of the entire strip of the easement lands but only thearea contemplated for a swimming pool and related facilities. No right was granted by the easement to the use of any lawns or gardenspresent on the easement lands.

The court further noted that there was nothing in the easement permitting a fence or wall on the easementland. Grant v. MacDonald (BC CA), 1992 CarswellBC 179, 68 B.C.L.R. (2d) 332, [1992] 5 W.W.R. 577, 24 R.P.R.(2d) 234, 15 B.C.A.C., 241, 27 W.A.E. 241. [16] In the second action, the grantee had sought to construct a swimming pool with plans that contemplated it would encompass90 to 95% of the easement lands. The grantor’s sought an injunction preventing its construction.

In imposing terms on limiting theintended construction, the court stated at paragraph 19: The Court of Appeal, in concluding that the easement was not inconsistent with the proprietary rights of the owners of the servienttenement did not, in my view, contemplate an exercise of the easement which would virtually evict the owners of the servient tenementfrom their own land. [17] The defendant argues that the easement amounts to a substantial interference with her right of possession and proprietorshipover her own land.

She argues that the easement goes too far in granting the plaintiffs “exclusive full and free use of the easementland”plus the right to construct a fence enclosing the easement land. The remaining rights which she holds under the easement are verylimited, being a right only to access for defined purposes.

She argues that, given that the defendant’s home has no roof, footing or eaveson or near the easement land, she has no legitimate right to access the easement land for any purpose. [18] Therefore the defendant argues that the plaintiffs have effectively acquired title to the easement land while excluding her fromany use. Plaintiffs Argue: [19] The plaintiffs referred to Vantreight v. Gray [1993] B.C.J.

No. 175 where the court stated at paragraph 17 stated: ... even a right that significantly (my emphasis) detracts from the servient owner’s rights may be consistent with the existence of aneasement... [20] In that decision the respondent had the right to construct, maintain, remove, replace, lawns, trees and any other plant life. Thegrantor was prohibited from cutting down on removing trees, shrubs or plants from the said area.

The grantee had the right to constructroadways or pathways for right-of-way purposes, the right to repair or replace such roadways or pathways or any improvements includingfencing the easement area. She was allowed the right to pass and repast over the easement lands. The main reason for the easement wasthat the defendant wanted a buffer zone between her property and the remaining property in the Valley. There was intense pressure todevelop the agricultural area and she wished to ensure that any future development would have a minimum impact on her enjoyment ofher own land.

The court concluded that the easement did not deny the petitioners legal possession of the easement land. [21] On appeal, the British Columbia Court of Appeal { (BC CA), 1994] B.C.J. No. 2749, 53 B.C.A.C. 166, 100B.C.L.R. (2d) 275, 43 R.P.R. (2d) 179, 51 A.C.W.S. (3d) 1375 stated at paragraph 13:

... this easement does not entirely dispossess the owners of the servient tenement from rights of ownership, possession, occupation andenjoyment of the land. It diminishes the totality of those rights but it does not entirely take away their possessory and other rights. [22] In Westside Land Corporation v. Deszynski 2004 ABQB 82 the respondent purchased a quarter

section of land from an estateand in order to gain access to the property, the respondent needed the right of access through the adjacent quarter section, also owned bythe estate. In easement was created over 10.55 acres of land for the purpose of allowing the respondent to build an access road, whichwas subsequently built. The easement allowed the respondent to fence the lands.

The applicants purchased the adjoining quarter sectionof land and wanted to develop the area including the area within the easement. [23] The applicants argued that the grant amounted to transferring title to the respondent and therefore was invalid. Rooke J. (as hethen was) referred to the British Columbia cases of Grant and Vantreight and concluded that while the easement restricted the applicantsuse of the property it did not grant title to the respondent, nor does it deprive the applicant of its proprietary rights. The respondent didnot acquire exclusive and unrestricted use of the easement area.

As in Vantreight, the grant did not speak of “exclusive use”. The courtdetermined that the term “exclusive right”only meant that the applicant could not give that right to any other party. The court concludedthat the applicant was still allowed access and use of its own lands, providing that it complies with the easement agreement. Therespondent did not have exclusive and unrestricted use of the easement area. [24] In Moyer v.

Mortensen 2008 BCSC 485 , 2008 B.C.S.C. 485, the defendants were grantees of an easement thatprovided: “free and uninterrupted right-of-way, ingress and egress for persons, animals and vehicles...” over the easement land. Itgranted the right “to enter upon the said land at any time, to repair, correct, operate, replace, fence and keep and maintain at all times ingood condition and repair the said right-of-way”. The court determined that the primary right granted in the easement was a right ofpassage over the servient tenement for the better enjoyment of their own land.

The right to repair, correct, and fence was an “ancillaryright”intended to support and make effective the primary grant of the easement. [25] The court was not asked to deal with the validity of the easement but rather to determine the limits of the easement. It wasdetermined that the intention of allowing the land to be fenced was to permit a gate at the entry and exit of the right-of-way.

When thegrantee attempted to prevent the grantor’s access over the easement land, by the removal of a culvert on a level crossing, used by thegrantor, and by fencing off the easement land, the court concluded that the grantee had overstepped the limits of the easement agreement. [26] The plaintiffs dispute the defendants allegation that the easement grants total or “exclusive use” of the easement lands. Theyargue that the grant of “exclusive use”is a conditional or restricted use. It is exclusive use for the purpose of patio, lawn and garden ordriveway only and not for all purposes.

They further argue that this limited “exclusive use”is itself subject to a number of conditions orreservations. The defendant maintains the absolute right to have permanent objects (eaves and roof) overhang the easement, to affix apermanent structure (footings) on the easement and to enter upon the easement to repair, paint, alter and maintain the defendantsresidence. [27] The plaintiffs argue that their easement rights are restricted because they have no right to erect structures above the surface ofthe land or beneath the surface, other then a fence.

The plaintiffs could not use the land for the construction of a swimming pool or theerection of a garage or gazebo. Furthermore the plaintiffs have a positive obligation to the defendant to landscape and maintain theeasement land, maintain a fence if one its to be built, and save harmless the defendant from liability on the easement land.

They arguethat these limits on the exclusive use and restrictions and obligations substantially restrict their proprietary rights with respect to theeasement land. [28] The plaintiffs further argue that while the defendant does not currently have a roof extending over the easement land, theright nevertheless exists and may be relied upon by the defendant or future owners of the property if the existing dwelling is renovated orrebuilt. [29] In Westside, Vantreigh and Moyer, the construction of a fence was not an impediment to the court finding a valid right solong as access of some sort to the easement land is provided to the servient owner.

The court in each case looked at the nature, extent andpurpose for which a fence was allowed in reaching its decision. [30] In this subdivision the developer proposed to provide each lot owner with the use of one significant side yard, rather thanhaving the enjoyment of 2 small side yards. The purpose of allowing a fence to be constructed is ancillary, more to delineate theeasement line, then to prohibit all entry by the servient owner. If the easement allowed unconditional “exclusive use” of the easement

land, with a right to fence and thereby exclude the servient owner, the easement would be invalid. It appears the developer, in creating the easements in this subdivision, stopped short of an unconditional conveyance of too many property rights. In my opinion the easement is valid. [ 31 ] The fact that, in 1982, the Calgary Land Use Bylaw was amended to impose restrictions on the right to fence “Zero Lot Line ” side yards is not relevant to determining the validity of this easement. The bylaw does not ban or void or invalidate the easements in this subdivision. Is the Easement an Illegal Subdivision? [ 32 ] The defendant refers to the prohibition contained in section 652 (1) of

Part 17 of the Municipal Government Act which states: A Registrar may not accept for registration an instrument that has the effect or may have the effect of subdividing a parcel of land unless this subdivision has been approved by a subdivision authority. [ 33 ] “Subdivision” is defined in the Act as “the division of a parcel of land by an instrument”. The defendant argues that the easement is an instrument. Furthermore the easement caused a division of a parcel of land which was not approved by a subdivision authority. [ 34 ] Alberta Courts considered

section 652 in Taylor v. Alberta (Registrar, South Alberta Land Registration District), [2005] A.J. No. 696, 2005 ABCA 200 , 255 D.L.R. (4 th ) 457, [2005] 10 W.W.R. 203, 46 Alta. L.R. (4 th ) 1, 367 A.R. 73, 10 M.P.L.R. (4 th ) 167, 141 A.C.W.S. (3d) 212, 2005 CarswellAlta 789 and Darnley v. Tenant, [2006] A.J. No. 977, 2006 ABQB 575 , 63 Alta L.R. (4 th ) 100, 408 A.R. 261, 46 R.P.R. (4 th ) 212, 152 A.C.W.S. (3d) 942, 2006 CarswellAlta 1022, however neither cases is on point or helpful to our circumstances. [ 35 ] The lots in this subdivision were no doubt approved by the municipal subdivision authority.

The defendant argues that the registration of the easement amounted to a re-division of the approved subdivision. But no new titled lot was created with the registration of the easement. Title to the easement land remains with the defendant and her predecessors. [ 36 ] The only other way that the defendant could successfully argue an improper subdivision, would have been to satisfy me that the easement effected the conveyance of all property rights to the plaintiff.

As noted above, I did not accept the defendants argument that the easement amounted to the exclusive or unrestricted use of the land. [ 37 ] Therefore it is my opinion that the registration of the easement did not cause a division or re-division of the law in question. [ 38 ] Furthermore, even if the registration of the easement created a subdivision or re-division of the lot, the plaintiffs are saved by

Section 76 of the Land Titles Act which states:

(1) No instrument or caveat shall be registered in contravention of

Part 17 of the Municipal Government Act or the regulations made under that Part.

(2) Notwithstanding subsection (1), if a registration of an instrument or caveat is made in contravention of subsection (1), that registration ceases to be voidable when any person has in good faith acquired rights for value in the subdivided land. [ 39 ] The plaintiffs purchased their property in good faith and for value with knowledge of the easement with its associated

benefits and burdens. Conclusion [ 40 ] For the reasons given, I have concluded that the easement is valid and therefore the defendants application is dismissed, with costs of the application payable forthwith by the defendant to the plaintiffs. Heard on the 20 th day of October, 2011. Dated at the City of Calgary, Alberta this 30 th day of November, 2011. K.R. Laycock M.C.C.Q.B.A. Appearances: Andrew Culos Jensen Shawa Solomon Duguid Hawkes LLP for the Plaintiffs Beth P. Younggren Macleod Dixon LLP for the Defendant

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