Zanussi v. Roosen, (2011) 528 A.R. 194 (QBM)

• Judge: Laycock
• Neutral Citation: 2011 ABQB 751
• Citation: (2011), 528 A.R. 194 (QBM),2011 ABQB 751,528 AR 194,(2011), 528 AR 194 (QBM),528 A.R. 194
• Date: 20 October 2011
• Court: Court of Queen's Bench of Alberta (Canada)

Zanussi v. Roosen (2011), 528 A.R. 194 (QBM)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. DE.070

Larry M. Zanussi and Marie T. Zanussi (plaintiffs) v. Carla Roosen (defendant)

(1001 17101; 2011 ABQB 751)

Indexed As: Zanussi v. Roosen

Alberta Court of Queen's Bench

Judicial District of Calgary

Laycock, Master

November 30, 2011.

Summary:

The plaintiffs were entitled by easement to use a five foot strip of the defendant's adjoining property for the purpose of a patio, lawn, garden or any of them. All 15 properties in the subdivision were likewise encumbered. The defendant placed a garden shed on the easement lands. The plaintiffs sued for damages and an order requiring the defendant to remove the shed. The defendant applied for partial summary judgment and a declaration that the easement was invalid.

The Alberta Court of Queen's Bench dismissed the application. The easement was valid.

Land Regulation - Topic 2703

Land use control - Subdivision control - What constitutes a subdivision (incl. illegal subdivision) - [See Real Property - Topic 7015 ].

Real Property - Topic 7015

Easements, licences and prescriptive rights - Creation - General - Validity - General - Each of the 15 properties in a subdivision was encumbered by a five foot easement giving the owner of the adjacent property the right to use the easement lands for a patio, lawn, garden or any of them - The defendant placed a garden shed on the easement property - The plaintiffs sued for damages and an order that the defendant remove the shed - The Alberta Court of Queen's Bench dismissed the defendant's application for summary judgment for a declaration that the easement was invalid - The court rejected the argument that the easement was invalid because it was too wide or vague, was inconsistent with the proprietorship or possession of the defendant or was a mere right of recreation without utility or benefit - The easement did not substantially interfere with the defendant's right of possession and proprietorship - The easement did not grant total or "exclusive use" of the easement lands to the plaintiffs - The court also rejected an argument that the registration of the easement constituted an illegal subdivision of land - Even if it did, the plaintiffs were saved by s. 76 of the Land Titles Act, because the plaintiffs purchased their property in good faith and for value with knowledge of the easement with its associated rights and benefits.

Real Property - Topic 7286

Easements - Extent of right granted - Requirement of some residuary rights remaining with the grantor - [See Real Property - Topic 7015 ].

Cases Noticed:

Shelf Holdings Ltd. v. Husky Oil Operations Ltd. and Inspector of Land Titles Offices (Alta.) (1989), 94 A.R. 241; 1989 ABCA 30, refd to. [para. 9].

Ellenborough Park, Re; Davies, Re; Powell v. Maddison, [1956] 1 Ch. 131; [1955] 3 All E.R. 667, refd to. [para. 9].

518002 Alberta Ltd. v. Edmonton (City) (1996), 186 A.R. 263 (Q.B. Master), refd to. [para. 13].

Grant v. MacDonald, [1992] 5 W.W.R. 577; 15 B.C.A.C. 241; 27 W.A.C. 241; 24 R.P.R.(2d) 234; 1992 CarswellBC 179; 68 B.C.L.R.(2d) 332 (C.A.), refd to. [para. 15].

Vantreight v. Gray et al. [1993] B.C.J. No. 175 (S.C.), refd to. [para. 19].

Vantreight v. Gray et al. (1994), 53 B.C.A.C. 166; 87 W.A.C. 166; 100 B.C.L.R.(2d) 275; 43 R.P.R.(2d) 179; 51 A.C.W.S.(3d) 1375 (C.A.), refd to. [para. 21].

Westside Land Corp. v. Deszynski, [2004] A.R. Uned. 131; 2004 ABQB 82, refd to. [para. 22].

Moyer v. Mortensen et al., [2008] B.C.T.C. Uned. 267; 73 R.P.R.(4th) 34; 2008 BCSC 485, refd to. [para. 24].

Taylor et al. v. Registrar of South Alberta Land Registration District et al., [2005] 10 W.W.R. 203; 367 A.R. 73; 346 W.A.C. 73; 255 D.L.R.(4th) 457; 46 Alta. L.R.(4th) 1; 10 M.P.L.R.(4th) 167; 141 A.C.W.S.(3d) 212; 2005 CarswellAlta 789; 2005 ABCA 200, dist. [para. 34].

Darnley v. Tennant (2006), 408 A.R. 261; 46 R.P.R.(4th) 212; 152 A.C.W.S.(3d) 942; 2006 CarswellAlta 1022; 63 Alta. L.R.(4th) 100; 2006 ABQB 575, dist. [para. 34].

Statutes Noticed:

Land Titles Act, R.S.A. 2000, c. L-4, sect. 76(1), sect. 76(2) [para. 38].

Authors and Works Noticed:

Cheshire and Burns, Modern Law of Real Property (17th Ed.), pp. 583, 585, 586 [para. 7].

McClean, Albert J., The Nature of An Easement, p. 51 [para. 11].

Ziff, Bruce, Principles of Property Law (5th Ed. 2010), p. 379 [para. 14].

Counsel:

Andrew Culos (Jensen Shawa Solomon Duguid Hawkes LLP), for the plaintiffs;

Beth P. Younggren (Macleod Dixon LLP), for the defendant.

This application was heard on October 20, 2011, before Laycock, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on November 30, 2011.