AgriLaw: August 2009

Equitable Access

Where one neighbour agrees to contribute financially to the construction and maintenance of an alternate access road across an adjoining neighbour’s property, are such access rights enforceable against the subsequent owner of the adjacent property?

In a recent decision of the British Columbia Court of Appeal, the court considered a case in which neighbours had agreed that an existing access road which interfered with pasture land should be relocated from the middle of the property to the common boundary.  A third adjacent neighbour was engaged to construct the new road and, following construction, the parties used and maintained the new road for 25 years.  At that time, the neighbour who had originally constructed the new road purchased the property upon which the road was located and announced his intention to close the road.  The trial court granted an “equitable easement” to the parties requiring use of the road to access their property.  The new owner of the property subject to the access road appealed.

In its disposition of the appeal, the appellate court applied the doctrine of proprietary estoppel and determined that the trial judge was correct in granting an equitable easement.  The court referenced earlier judicial authority which stated:

“Equitable easements may arise through the operation of the equitable doctrines of proprietary estoppel and part performance or through the operation of related equitable principles.  Proprietary estoppel comes into operation when one party is encouraged to act to its detriment in relation to its land by the promise or encouragement of another in circumstances in which it would be unjust to allow the latter to insist on its strict legal rights … Whether an equity arises and its extent depends on the dealings between the parties, including their contract, their promises and their conduct … The ultimate question in light of all of this is whether it would be inequitable to permit one party to insist on its strict legal rights.”

The appellate court held that, under the agreement between neighbours to relocate the road, the neighbours requiring access gave up their claim for use of the existing road and then worked cooperatively to construct and maintain the new road.  In dismissing the appeal, the court concluded:

“Insofar as detriment must be shown to establish an equitable estoppel, it is present in this case by the payment of money to construct and maintain the new road and by the [neighbours requiring access] forbearance of pursing their entitlement to access in reliance on the conduct and acquiescence of [the original and new owner of the access road property].

In my view, it would be inequitable to allow [the new owner] to assert his right to the land so as to deprive the respondents to access to [their] property.  An equity is raised and proprietary estoppel established.”

Representations and conduct by one party upon which another party relies to their detriment may result in the creation of property interests.  Such interests may prevail where strict reliance on the legal rights of parties would be inequitable.