A New Decision From The Court of Appeal Of Alberta Considers The Proper Test For An Easement Of Accommodation

Background

A numbered company, 280430 Alberta Ltd. (“280”), owned five lots of land. In 2002, it sold three lots to the appellant Miywasin Friendship Centre (“Miywasin”). 280 later sold the remaining two lots to the respondent 1927546 Alberta Ltd (“192”).

When 280 sold the lot to Miywasin, it permitted Miywasin and its tenants to drive over the lots 280 retained in order to access parking spots at the back of the Miywasin land. No-one disputed that the only access to the parking spots at the back of the Miywasin land was over the 280 lots.

In 2017 when 280 was preparing to sell the remaining two lots to 192, Miywasin asserted an easement over the remaining two lots so that it could continue to access the parking.

What is an easement of accommodation?

As set out in the case, an easement of accommodation has three requirements:
a) It must be continuous and apparent;
b) It must be necessary for the reasonable use of the property granted; and
c) It must have been used by the owner before the transfer.

What Happened in the Case?

The trial judge found that the easement in this case satisfied the first and third requirements, and neither finding was appealed. The trial judge also determined that the access across the 280 lands was continuous and notorious, and that its necessity would have been obvious to passers-by. However, the trial judge found that the second requirement was not established. She rejected arguments that the parking was necessary for client confidentiality, to protect employee safety, or for loading and unloading goods. Further, the trial judge did not accept that the costs of changing the lot access were prohibitive, but found that there were reasonable alternatives available.

When the case was appealed, the Court of Appeal found that the current use of the land, or use of the land after the sale to Miywasin, was irrelevant to the second part of the test.

The Court of Appeal concluded that the trial judge erred in considering arguments related to Miywasin’s particular use of the lot for parking. In addition, the trial judge should not have focused on the use of the land for parking specifically, but should instead have considered whether an easement across the 280 lands was necessary for the reasonable use of the Miywasin lots generally.

The trial judge also erred in focusing on alternatives to parking on the Miywasin lots: available street parking or rental stalls was irrelevant. Finally, the Court overturned the trial judge’s finding that Miywasin had failed to establish that constructing an alternative access was prohibitive.

The Court found that an easement of accommodation arises at the point a landowner divides the property. The focus of the second part of the test should be on the use of lots in the time period leading up to the land transfer in 2002, not the uses of the lots in general.

Although the threshold to establish an easement of accommodation is less onerous than that for an easement of necessity, and mere inconvenience is not enough, the Court determined that if the applicant can establish that “considerable inconvenience and expense” will be required to create an alternative, this will be sufficient to satisfy the test.

Takeaways

The Court of Appeal has provided a fresh examination of the easement of accommodation, a type of easement not often considered by courts. In this case, the Appellant was able to meet the test, and the appeal was allowed. The Court found that an easement of accommodation was established over the 280 lands in favour of Miywasin.