Cut off from a easement right of way through severance? 1.0.3 Division of Dominant

Question

I've made a little video of my question since I think its best drawn out to understand my question fully.

I will try to explain it quickly via words but best to review my video.

There was a parcel of land in Ontario. An entire 200 concession lot. Lets call it Parcel A. At some point Parcel A was divided in half. Creating a new Parcel B being the south half of Parcel A leaving the balance of Parcel A as north half.

During the severance of Parcel A it became subject to a right of way for the owners of Parcel B in, over along and upon a strip of land of a uniform perpendicular width of 25 feet being the easterly 25 feet of the north half Parcel A. The purpose was that the north half has a public road running through it which connects to the 25 foot right of way. Giving the owners of Parcel B a way to cross Parcel A and get to the public road.

Later on Parcel B was then split in half. Making a new Parcel C as the north half of B. Leaving the balance (the south half Parcel B) I know that in 1.0.3 Division of Dominant Lands it says "Upon the severance of a parcel of land, all existing easements appurtenant to the whole, benefit each severed portion." But how does Parcel B cross Parcel C when C is in the middle to get to the Right of way on Parcel A. Is it implied through law that B must have to cross C to get to A or has B now been landlocked? If its implied what law or wording in the law would support this? What path would the owner of B be allowed to take across C to get to the right of way on A?

See my short video https://photos.app.goo.gl/WLxt8ixfHsiWbB1q7

Answer 1

You don't identify a jurisdiction or what Section 1.0.3 you are referring to in the body of your question, and I didn't watch the video. I answer under the majority rules of U.S. common law.

Is it implied through law that B must have to cross C to get to A or has B now been landlocked? If its implied what law or wording in the law would support this? What path would the owner of B be allowed to take across C to get to the right of way on A?

Under common law rules in most U.S. states, an easement by necessity would be implied in law for the owner of Parcel B to access their property from the public road across Parcel C to get to Parcel A. In a court action to have this easement by necessity recognized (if necessary), any reasonable route chosen by the owner of Parcel B across Parcel C would probably be recognized by the court.

Under some circumstances (such as the existence of an established path from Parcel B across Parcel C established by historic use) an easement implied in fact could also arise in the place where access was historically present prior to subdivision.

If an access route was used post-subdivision for the requisite number of years without express permission to do so, and without legal action or a physical interruption of the access route, a prescriptive easement could arise (which is analogous to gaining title to land by adverse possession).

You could probably also sue the lawyer handling the subdivision for malpractice for forcing you to incur litigation costs, and delays causing other harm litigating an issue that should have been resolved with an express easement from Parcel B across Parcel C in the original transaction.

UPDATE: Upon later getting a chance to view the video, it seems that Ontario law is implicated. Ontario has codified real estate law to a much greater extent than most U.S. states, so I don't know if the common law doctrines found in the U.S. would apply to supplement Ontario law in this case.

If they don't, it is likely that a private condemnation action would be available under Ontario law, which is analogous to an eminent domain petition by a government with condemnation power to involuntarily purchase someone else's land for a public purpose at fair market value, but brought by a private landlocked land owner for the limited purpose of buying an access easement.

Answer 2

Is it implied through law that B must have to cross C to get to A or has B now been landlocked?

Maybe.

There is no doubt that the easement over parcel A operates to the benefit of parcels B & C.

When C was created, an easement for the benefit of B should have been created. Someone screwed up and may have been negligent but that's not the issue here.

If the original owner retained title to B, then they can claim an easement of necessity if such an easement is strictly necessary to access the property (see Toronto-Dominion Bank v. Wise, 2016 ONCA 629. The property has three other sides - it must be impossible not just difficult or expensive to access it from one of these for there to be an easement granted. For example, if the property is accessible by water or by constructing a tunnel through a cliff, there will be no easement.

English law suggests that the test is slightly more lenient if the grant is the other way, that is if the original owners kept C and disposed of B. However, the case cited is clear that this has not been considered yet under Ontario law. It may be that they will follow the English authorities or they may apply the same strict test.