[ 11] Additionally, at the road side front of the properties, ahead
of the houses, the respondents installed an asphalt driveway,
which also completely covers the three-foot strip.
[ 12] According to the applicant, she objected to these changes,
without success. Over subsequent years, she became increasingly
dissatisfied because, according to her, the respondents removed
snow from the concrete walkway and left it adjacent to her house,
which resulted in problems when it melted. She takes exception
to this conduct because, in her view, although she is the owner of
the three-foot strip the respondents are treating it as their property and disregarding her rights.
[ 13] More recently, further conflict between the parties arose
when the applicant’s husband attempted to straighten up a wooden
fence that had been erected by the respondents in the rear yards
of the properties, also along the western edge of the three-foot
strip. According to the applicant, when the respondents objected
to this activity, which she again viewed as further disregard of her
property rights, she resolved to take legal action to enforce her
rights. She consulted counsel and this application followed.
[ 14] I should mention that the respondents describe a lengthy
period of congenial relations between them and the applicant’s
parents, extending over many years. They also dispute the applicant’s characterization of the activities that led to the current
dispute. For example, they note that the installation of the new
concrete pathway between the houses ameliorated a problem that
was caused when the applicant carried out the weeping tile work.
[ 15] For purposes of my analysis of the legal situation as it now
stands, however, I need not resolve these divergent characterizations of the parties’ conduct. Suffice to say that my responsibility
is to assess the parties’ current rights and obligations, based upon
applicable legal principles.
[ 16] I should also add that, as confirmed by her counsel, the
applicant does not dispute that the respondents continue to enjoy
a right-of-way over the three-foot strip. She does assert, however,
that the restrictive covenants that were created in 1966 no longer
have any legal effect on her use and occupation of her property
and have not since March 3, 2006. As a consequence, she asserts,
the conduct of the respondents in installing the concrete curb,
concrete walkway and asphalt parking area amount to a trespass
on land owned by her.
The 2018 Decision of the Land Registrar
[ 17] Section 119( 9) of the Land Titles Act states as follows:
119( 9) Where a condition, restriction or covenant has been registered as
annexed to or running with the land and no period or date was fixed for its