Is this an implied easement?

Question

I'm looking to purchase some property in Ontario. The property in question is between two other properties. The owners of the properties on each side have created a path through the wooded area to access each other, but the path is not required to specifically gain access to their property (basically their kids use it to go play, it's easier than doing an entire loop around the forest to get to each others houses). The properties on both sides have their own respective private roads to access their properties, which end on each side of the one I'm looking to purchase.

I'm not a scrooge and don't plan on blocking them from walking through my property if I purchase it, but I'm wondering if there is an implied right of way that could be fought in court if my building plans end up inhibiting their access to each others properties. Is this a thing? Or does an implied right of way only pertain when it's the only source of access to your property and not necessary a "luxury access" between two properties.

Answer 1

No, but their use might give them a prescriptive easement. Under Ontario law, to establish a prescriptive easement, the trespassers would have to prove to the court that they:

1. Used the property without permission;

2. Used it openly and peacefully; and,

3. Used it continuously, uninterruptedly for 20 years. (You can interrupt their use by giving them permission to use it for 20 years!)

(This article summarizes easements in Ontario; the discussion in a recent decision discusses the statutes in some detail.)

Implied Easement: An easement is implied if it is necessary for the use of the property. For example, take your previous question. If your parents severed a portion of their property and sold it to you, there would be an implied easement across their land to give you access to the severed portion. The reasoning being that you would only buy the land if you had access to it, so you have the easement as an implication of buying it.

Answer 2

It's possible in Ontario to create an easement by prescription

If the owner of the land has suffered the accessway to exist for 20 or more years then the landholders to either side could claim an easement for traffic. It's possible this has already happened.