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For many families, the arrival of winter means rosy-cheeked children will soon be lacing up ice skates for some fresh air, exercise and outdoor fun.

But as much as Canadians cherish the story of how hockey great Wayne Gretzky perfected his skills on a backyard rink, every year we hear cautionary tales of families who are upset by an order to remove their home ice rink, after umpteen hours of flooding and care.

Often the issues start when a neighbour complains about the noise of pucks being blasted around, lights that shine into their home, or they see the rink next door as an eyesore that affects their enjoyment of their property. Last year, for example, a family in Ajax, Ontario was ordered to remove a small rink in their front yard or face a hefty fine.

So, assuming that Mother Nature cooperates and sends steady cold temperatures our way this winter, here are 8 things to know for a fun-filled outdoor ice skating season:

1. Backyard rinks are generally allowed – for personal use only
Families have the right to play in their own yards. In the City of Toronto, for example, backyard rinks are permitted if they are for personal use only. The key words here are “for personal use”. So, keep your rink for the private use of your family and friends. If the activity level becomes excessive and starts to resemble a full-time community centre, it could be deemed “non-residential use” and the good times may be over.

2. Stay within your property boundaries
Make sure the rink is 100% located on your property and does not creep over the property line – even the most supportive neighbour will expect you to respect the boundary. You don’t need the kind of trouble that comes from crossing that line.

Also note that the backyard is usually the best place for a rink as your front property line may be a lot closer to the house than you think, and you can’t put your ice pad on public right-of-way.

If you ’re not sure where your property line is, now is the time to find out its exact location, either by consulting your land survey plan (you can find GTA survey plans here) or by arranging for a survey crew to stake out your property line. (You’ll also appreciate this information when it comes time for summer landscaping projects!)

3. Rink boards and bleachers
In the City of Toronto, ice rinks are not deemed to be “structures” and therefore no permit is required to flood a patch of ice for your kids on your own property (see point #2 above). Things get trickier when you plan to build boards or bleachers. Now you’re crossing a line to installing “ancillary” or “accessory” buildings or structures in the eyes of local bylaw officers. That brings local zoning bylaws and building codes into effect. Ancillary structures are typically not permitted in a front yard, and need to comply with zoning regulations governing maximum height of the structure and setbacks from the property line in the backyard.

4. Lighting & Noise
Excessive lighting could be considered a nuisance that unfairly affects your neighbours. The Town of Oakville, for example, has a nuisance bylaw (2007-143) that states: “No Owner or Occupant of a Property shall cause or permit light to be broadcast directly from that Property onto another Property”. Similarly, late-evening noise may contravene noise bylaws.

Stringing some Christmas lights around your back fence is a simple way to provide lighting and nice ambiance (no need to start erecting light standards or spotlights!) And plan to shut things down at a reasonable time in the evening.

5. Check zoning bylaws
Always be sure to review zoning bylaws before you get started. You ’ll need to know the zoning designation for your property, as well as the location of your property boundaries. Zoning information, including Toronto’s consolidated zoning bylaw (569-2013) and Mississauga Zoning Information, is usually posted online, and a conversation with staff at your local municipal office is always well worth your time to discuss the specifics of your project.

6. Other considerations
Be aware that installing an ice rink will have a significant impact on your water bills, and drainage can be an issue in the spring depending on where all that melted water flows. (You DO NOT want to flood your neighbour’s basement.)

7. Keep your neighbours in the loop
A friendly chat goes a long way to maintaining cordial relationships. Talk to your neighbours about your plans. Take note of any concerns and try to address them up front. Mention that you will have rules, like no skating after 9 p.m. and that you welcome their input if any issues arise during the skating season. You want to minimize any impact on your neighbours – lighting, noise, water drainage, etc. – for a positive neighbourhood experience for all.

8. Consider the alternatives
Instead of building your own rink, why not take advantage of the many artificial and natural outdoor rinks available to the public in the Greater Toronto Area? The City of Toronto has 50 outdoor rinks and had a record 46 natural ice rinks built by community volunteers last year. Here’s a list of outdoor skating options in Mississauga, Oakville, Burlington, Halton Hills, Brampton, Vaughan, Richmond Hill, Markham, Aurora, Newmarket, Pickering and Ajax.

Whether you decide to go it alone and build your own rink, join with your neighbours and create a natural ice rink at a local park, or take advantage of other outdoor (and indoor) skating facilities, here’s to making the most of a Canadian winter!

Comments | Posted in December 2015 by jeff denham

You may be king of your castle, but do you have sole dominion over your land? The answer is ‘no’ if your property is subject to easement rights that allow another party to use part of your land or access services that cross it.

For example, your neighbour may have the legal right to use a portion of your driveway to access their garage. Or a public utility may have buried services that affect where you can install a new backyard pool or even a patio or deck. Any easement that affects your land is something you need to know about before you agree to purchase the property.

Here are the facts homeowners need to know about easements and how they affect private property rights:


What is an easement?

An easement is the right to cross or otherwise use another’s land for a specified purpose. 

For example, your property may have an easement over your neighbour’s property to allow you to access your backyard.  Or maybe your property and your neighbour’s property have an easement that permits you both to share a single driveway.

Central to the concept of an easement is that they are a right of use, not ownership. Also important is that easements are registered for and against land, not people.  You don’t have an easement…your property does.  The exception to this is an easement in gross, which is registered with companies (like Bell and Rogers) or with people rather than land.

Survey Plan showing right-of-way easement between two Toronto houses.
Note that the right-of-way is up against the house to the North.


Buying and selling property with easements

Rights and obligations of easements registered on your property are automatically transferred to the new owners when you sell.  

Similarly if a property owner wishes to sell his or her land they do not need the approval of the party whom the easement favours. However any change in the use of the property must take into consideration the fact of any existing easement. This would include building additions, a change in fence locations or a severance.


How is an easement documented?

Easements must be registered on title to be valid, either at the Registry Office or on TERANET. The parcel of land that is subject to the easement (called the “servient tenement”) must be described and the purpose of the easement identified. The parcel of land that benefits from the easement, known as the “dominant tenement,” must also be described.

For example, when there is little room between two houses, a right-of-way easement may allow the owner of one property (the dominant tenement) to maintain his or her home (e.g., to wash the windows) by entering an adjacent property (the servient tenement). In the official documentation, the servient tenement would be “subject to” (S/T) the easement, and the dominant tenement would have rights “together with” (T/W) the servient tenement.


How is an easement described?

The land that the easement affects must be described in the originating creating document as well as in subsequent transfers and mortgages. The pertinent documents (e.g., a reference plan or a legal document known as an “instrument”) will be listed in the Parcel Register available for purchase from the local Land Registry Office or for download from TERANET. These documents are also contained in a BoundaryPlus™ Property Report from Protect Your Boundaries.

Easements will be referenced in the property’s legal description, specifically detailing the burden or right of the easement, and in the instrument (which will have a unique number from the land registry).

People sometimes confuse verbal permission to use someone else’s property with an easement. If this is the case, it’s best to get the agreement in writing and register it on title.


Right-of-ways

A “right-of-way” (ROW) is a type of easement that commonly affects residential properties. Right-of-ways involve the movement of vehicles or pedestrian traffic (even cattle!) directly through a defined pathway.

Right-of-ways involve two adjacent properties. A deed will typically state what the land is “subject to” (S/T) or “together with” (T/W) if there is a ROW through neighbouring land.

Consider the example of a “lot” that is split front and back such that the rear portion has a driveway easement through the front parcel to get to the road. This permanent right-of-way cannot be blocked or fenced such that the access to the rear is obstructed.

More problematic are the mutual driveways between houses that are common in older neighbourhoods in the Greater Toronto Area (GTA). There are lots of stories of neighbours (often new neighbors or tenants) who restrict vehicular access to a rear garage or try to fence off a portion of the legal access. By law they cannot do this but such actions can result in open hostility between neighbours and even litigation.
 

Photo of the two houses with location of right-of-way (orange) and boundary (blue) overlaid.
Notice the white posts and car — both obstructing the free and clear access to the easement


Sometimes what may be perceived to be legal access may not be a right-of-way at all because it is not specifically registered on title. When lots were created many decades ago sometimes an intended right-of-way did not find its way into the wording of the deed. In other cases it may have been a misunderstanding between the original parties (such as a builder and a developer) or an oversight by the solicitor. It may even be possible to correct such a deficiency today.


The exception to the rule

In certain cases where there has been longstanding (but unregistered) use of a driveway there could be common law right-of-way by prescription. As with Adverse Possession (see our previous blog) this cannot occur if lands are in Land Titles. The use must have taken place for 20 (not 10) uninterrupted years, prior to the date of conversion to Land Titles, and satisfy other precedent conditions before a court would make such a ruling in favour of the party claiming such access.

Another option is to work out an agreement with the neighbour to create and register a legal easement “on title”. This may involve a monetary payment but can save thousands of dollars in legal fees and result in more congenial relationships.


Utility easements

Many properties in the GTA are traversed by registered utility easements. This might be overhead phone, hydro and/or TV cables crossing the rear property lines of a number of lots in the block. It may also include water pipes and storm/sanitary sewers. Typically utilities in front of a house are within the road allowance and do not require easements. As well, services to individual houses do not require easements. Lines crossing a property to service another property are more problematic.


Problems to Consider

There are two issues to be concerned about. First, the easement applies not just to location of the pipe, conduit or wire, but to the full width of whatever is described in the title records. The overhead telephone wires strung between poles may lie within a 10-foot-wide easement that may well extend into the planned location of an in-ground pool or gazebo in the backyard. As you embark on your dream backyard renovation, be sure to avoid encroaching on a utility easement.

Remember that easements give others the right to use and/or access your land. This includes ripping out an expensive cedar deck to gain access to buried services. Our advice: check the title documents or survey to make sure that you are not building over a buried utility line.

The second issue is that of unregistered utility easements. This is another exception to the rule that easements must be registered: in certain cases an agency, such as local hydro, may have a legal easement even if it is not on title. If there is a line crossing your property but there’s nothing in the Parcel Register, you can check with the utility to see if they have an unregistered record of an easement. Toronto Hydro, for instance, has a process in place to make this determination. If it is determined that the unregistered easement is not legal the option is for the agency to purchase a “new” one from the landowner or remove equipment altogether.


Other types of easements

There are several kinds of easements that affect Canadian land. Some of these include:

  • Conservation easements
  • Construction
  • Right to light
  • Support
  • Time-limited access
  • Maintenance
  • Air rights
  • Easements described in a condominium declaration 


Surveys – Your Best Practice

Land surveys are useful tools to help understand such land situations. Survey plans prepared in the modern era will show the fact of a registered easement on the face of the plan. In most cases the location, derived from deed dimensions, will be shown in rough outline as well. An existing survey “paints a picture” of the property at a given point in time and may well show evidence of use in support of (or to refute) a claim for a prescriptive easement.

Take the copy of the plan with you when you walk the property. Read the information that relates to the size and shape of easement. Pace it out. See what structures might have been built within the easement. Are they legal? A movable shed will not block utility access. An elaborate gazebo and stonework, however, are not easily removed. Look for evidence of use such as overhead wires crossing through the land that are not shown on the survey or deed. An older driveway that has been built over the boundary could suggest a possible claim of prescriptive rights.

Contact a lawyer if you have questions about easements and the rights concerning a particular property or someone’s interest in your land. And remember, a survey plan is always one of your most valuable documents when it comes to easements and other important land issue. Use Protect Your Boundaries to find your survey plan and help you understand your land.

1 Comments | Posted in October by Protect Your Boundaries

“Privacy is what we crave most,” horticulturalist Thomas Hobbs declared in his book Shocking Beauty, an ode to enthralling garden design. “It is essential. You must create it if it is not already there… The satisfaction we derive from a garden is multiplied manifold by how much of it we can experience in private, or with people we know and like.”

Ideally, the creation of a private outdoor space takes into account both function and form – the best solutions protect your sanctuary from intrusion and screen out undesirable views, while beautifying your space.

Hedges, strategically located trees and bushes, and trellises and fences adorned with climbing plants also provide numerous other benefits: they help buffer noise, protect from cold, drying winds, and may support biodiversity by providing shelter, nesting sites and food sources for birds, bees and butterflies.

Looking to add privacy to your backyard? Here are 9 factors to consider for an ideal solution:

1. Location – Do you know where your property line is? Proper placement of a hedge, fence, tree or other garden features is essential, so be sure to check your property’s survey plan first – you don’t want to start a fight with your neighbours and have to redo all your hard work if you encroach on land that’s not yours.

If you don’t have a survey plan, get one, learn how to read it and consider having the boundary staked if you are at all unsure about the location of the boundary. Otherwise, here’s what can go wrong.

While a fence typically goes on the property line (allowing both neighbours to share ownership and the cost and maintenance), a hedge is different (as are trees). Learn more by reading our blog post on hedge placement.

2. What are your privacy requirements? Evergreen trees or shrubs (such as cedar, boxwood, yew) will provide a screen of green even during winter, while deciduous plantings (such as mock orange, lilac, forsythia) will lose their leaves when the cold weather sets in, but they also offer more options in terms of colour as they bloom. Hedges, shrubs and trees can also offer the advantage of extra height beyond what zoning restrictions allow for a fence.

3. What are your security requirements? Some hedges form a dense, almost impenetrable barrier while others are more porous – a factor to consider especially if children or pets must be kept within the yard.

4. Site & light conditions: Is your yard boggy and wet, or dry? Is the soil heavy clay or light, airy loam? Acid or alkaline? How much sun does it receive during the day, and when? All these things will affect your choice of plant material.

5. Design and aesthetics: Do you want a formal, clipped look (boxwood, yew)? Or a more informal, natural look (dogwood, lilac)?

6. How high and wide will the hedge or other plants grow? Many varieties of euonymus, for example, are excellent at scrambling up fences and trellises, providing year-round evergreen coverage while taking up a minimum of space in the yard. Also consider how a really tall hedge would affect your neighbours. (A little consideration goes a long way in fostering neighbourhood harmony.)

7. How long will it take the hedge or other plantings to reach the desired height? Some plants grow faster, others slower. How long until you have the effect you’re looking for?

8. Care and maintenance: Hedges, shrubs and trees require pruning to look their best. And some need more water and fertilizing than others to thrive.

9. Consider biodiversity: Native trees, shrubs and plants not only support the needs of birds, bees, butterflies and other creatures, but can be low-maintenance options as well. Red-osier dogwood (Cornus stolonifera) provides white flowers in the spring, fruit for numerous species of birds and showy red branches after the leaves fall in autumn to brighten the winter landscape. Wild roses (Rosa virginiana) have dense thorny branches – idea for cover and nesting – and fruit for many bird species. American highbush cranberry (Viburnum trilobum) is a hardy shrub that turns bright red in fall, with fruit that attracts 30 species of birds, including the cedar waxwing. Check out the Evergreen Native Plant Database to find native trees, shrubs, vines and other plants for your backyard.

Properly planned, installed and cared for, hedges and other plants can provide multiple benefits: defining your property’s boundary, adding the privacy you desire, extending your living space and providing important shelter and food for the birds and other wildlife who share our world.

Comments | Posted in July 2015 by Protect Your Boundaries