the owners of No. 97, and the first registration notes expressly
referenced the instruments creating the restrictive covenants.
[ 6] In 1981 and 2000, the respondents acquired title to No. 97.
[ 7] In 2008, following the death of her father and pursuant to a
transfer from her mother, the applicant became the sole owner of
No. 99. The 2008 transfer in favour of the applicant contained the
following legal description:
Parcel 251–1, Section B1764; Part Lots 251 & 252, Plan 1764 designated as
Pts 1 & 2, 66R3075, Subj to Rt-of-Way in favour of Owners & Occupants of
lands to East over Pt 1, 66R3075, & Subj to Covenants in NY480231
(B193477). Twp of York/North York, City of Toronto
Thus, the transfer in favour of the applicant contained express
references both to the right-of-way in favour of the owners of No. 97
and the restrictive covenants, all as contained in the original 1966
The Current Dispute
[ 8] The distance between the foundations of the two houses at
No. 97 and No. 99 is approximately nine feet. The property line
between the two lots ( i.e., the eastern edge of the three-foot strip)
is closer to the foundation of No. 97 than the foundation of
No. 99. Thus, the majority of the land between the houses is
owned by the applicant: more than five feet (including the three-
foot strip) are owned by the applicant while less than four feet are
owned by the respondents.
[ 9] For many years, the surface of the area between the houses,
including the three-foot strip, was covered by a combination of
concrete and asphalt. In or around 2009 or 2010, the applicant
installed weeping tile around the foundation of her house at
No. 99. In the course of doing so she removed some of the asphalt
and concrete on the surface of the land between the houses.
Subsequent to this, and apparently in light of this disturbance of
the surface, the respondents installed a six-inch high concrete
curb along the western edge of the three-foot strip. Thus, the
concrete curb is located on the applicant’s property, less than
three feet east of the foundation of her house at No. 99.
[ 10] The respondents also installed a concrete walkway
between their house at No. 97, and the edge of the concrete curb.
As a result, between the two houses, the three-foot strip owned
by the applicant is now completely covered by the concrete curb
and the concrete walkway installed by the respondents. As well,
the walkway and curb installed by the respondents are approximately six inches higher in elevation than the remaining concrete
adjacent to the applicant's house.