Winter has arrived. We haven’t seen this much snow in a couple years, and certainly didn’t last winter. As I sat down to write my first article of the new year, I decided to revisit a column I penned some time ago. This article goes hand in glove with the arrival of snow, as it deals with the responsibility of snow removal between homeowners who share a mutual driveway or reciprocal right-of-way. With the forecast of a snowy winter, I thought it may be worthwhile to re-examine that column, which simply asked the question: who has to shovel the snow in the mutual driveway?
I’ve listed and sold many Beach homes over my 23 years of selling real estate which had off-street parking via legal easements (mutual driveway or right-of-ways). When I represent buyers in these scenarios, I ask the buyers if they are familiar with the rules or laws regarding mutual drives and right-of-ways before they buy. One good question I ask is ‘who has to shovel the snow in a mutual driveway’? Most buyers aren’t sure. When I delve deeper I find many buyers, and sellers as well, are not aware of the real ‘ins and outs’ of this type of easement. I think a quick refresher on mutual drives and right-of-ways is in order here.
Parking comes in different forms in the Beach. There’s on-street parking, requiring a paid permit issued by the City to park overnight or simply longer than three hours. There’s also private driveway parking (always check to make sure it’s private); laneway parking; parking via a laneway (right-of-way); front-yard parking pads (legal or not); and perhaps the most common form in our neighbourhood, the mutual driveway or right-of-way. I believe it’s this last type, and its ensuing rights and obligations, that is the least understood by buyers and homeowners. Ask yourself this quick question about a mutual driveway: who’s supposed to remove the snow from the driveway?
The term ‘mutual driveway’ is generally accepted to describe the strip of land located between two adjoining properties, which may be used for vehicles to access the street. Mutual driveway is really a term of convenience used to describe two easements that come together to form this driveway. The real description of a mutual driveway is a ‘reciprocal right of way’.
Easements are governed under common law, redefined in Ontario and Canada over time by case law. It is accepted that an easement must have four components: a dominant and servient tenement; an easement must accommodate, serve and be reasonably necessary for the enjoyment of the dominant tenement; the dominant and servient tenement must be different owners; and an easement must be capable of being used for what it was intended for with a clear and discernable route. There are many types of easements, but it is the ‘private right-of-way’ easement that comes into play most often. The dominant tenement is the property which derives the benefit or enjoyment of the easement. The servient tenement is the property that the easement burdens upon. Simply put, in a mutual drive situation, this easement allows you to drive upon your neighbour’s land without trespassing. Without this right, there might not be enough room for your vehicle to pass through. This makes you the dominant tenement, since you enjoy the benefit of the easement. Your neighbour is then the servient tenement, since it is at the expense of his land rights. In the case of a mutual driveway or right-of way parking, both adjoining landowners have both servient and dominant tenements. Within the deed of land, the obligations of the servient and dominant tenements are set out in the ‘covenant’. The covenant may be positive (affirmative) or negative (restrictive) in nature. With most mutual driveways and right-of-ways, the covenant is negative (restrictive) because the dominant tenement has the right to restrict the owner of the servient tenement from exercising all the rights associated with ownership of land. For instance the servient tenement may not erect a permanent fence upon land that he owns that may severely restrict the enjoyment of the easement by the dominant tenement.
So, who has to shovel the snow in a mutual driveway? Simply, the dominant tenement has the right to clear the snow from the servient tenement’s land if he chooses to. The servient tenement who owns the land, also has the choice of removing the snow from his land or not. Each of the owners cannot damage the other homeowner’s property in doing so, or make the other’s property difficult to access. For instance, if you shovel your own side of the mutual drive or your part of the right-of-way, you should not pile the snow onto the other owner’s land. Otherwise though, there is no obligation by either property owner to shovel the snow from the driveway. The simple rule is, since you own the strip of land that makes up part of the mutual drive, you are not required by law to provide snow shoveling for it in order for the adjoining owner(s) to enjoy the benefit of using that land. It isn’t under the same municipal rules as your front sidewalk, where snow removal is required. But if you have to work in the morning, you may want to grab the shovel anyway!
If you have any questions about this article, or Beach real estate in general, feel free to contact me at email@example.com, or call my office at 416-690-5100. Have a healthy and prosperous New Year!
Thomas Neal is a well-known and respected local Beach agent.
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Thank you for the very informative article. I still wish to know who is responsible for the upkeep of the right of way. Thank you.
I have purchased a small home with a ‘mutual driveway’. The neighbour I share the driveway with does not use the driveway, and in fact, has fenced the part of his yard where he would have had access to his property via this driveway. This individual also has a paved driveway on the other side of his house, which is where he parks his vehicles.
I have rented out this home and my tenants park in the driveway between both homes. Lately he has taken it upon himself to tell my tenants that they cannot park in the driveway, despite him never using it. If he continues to be a difficult neighbour, is it possible to somehow have the driveway declared a private drive? Also, if he wants the driveway to remain ‘mutual’, wouldn’t he have to remove the fence he erected to have it remain so? I don’t want this to become a major issue and am certainly willing to compromise, but I’m concerned that he might become a thorn in mine and my tenant’s side. Help!!!
Obviously you shouldn’t block the mutual driveway.
Hello. I share a driveway with my neighbor with a right of way 85 feet in from the sidewalk. I park directly behind my house while the neighbor parks at the end of the drive in front of their garage. I have a truck with a blade come in to clear up the center of the drive way. He then pushes all the snow into my back yard. My neighbor, who has not shoveled once is running out of space to park.They are now using part of my property to park on and sometimes are over the right of way which blocks me in. I have shoveled many times and have even shoveled where the plough edges have left snow on their property, so they can back in more to allow access for them to park back farther on their own property. I have been to the by-law, who tell me its a civil matter. Have had to call the police without a follow up. I am about at my wits end, is there anything else I can do? I have also been told by my lawyer that I can erect a fence on my property line to the right of way,,if I do this, the neighbor ,because they fenced in their back yard and didnt leave enough room for their parking would then have no parking,,and I think this would make this matter worse. I have been told by their company that there is no such thing as a right of way when I have had to go and ask them to move so I can get out of the driveway. I have lived here for 17 years and then bought 2 summers ago. thanks for any information you can give
I my husband and I live in a duplex. The front entrance is a joint entrance (the property line goes right up the middle. There is a closed in front porch, with private entrances to each unit (which are owned, not rented). The other homeowner uses the entrance as an entrance to her home daycare. She did not ask permission, or request an easement. Am I within my rights to request that she stop using the entrance for her daycare?
This is great for snow removal, as my neighbour is constantly out first to shovel. However, shovels the snow in front of my side doors and onto my front stairs blocking access and causing me to shovel double the amount by the time I get out. So thank you for this.
I also have another problem and that is about blocking the driveway with vehicles. They have a home business and people are constantly coming over, as well their friends and tenants and “stopping” in the driveway or even blocking my garages and parking directly behind my house. They have fenced off a section behind their house. I am constantly stopping their visitors to tell them to move as well as telling the neighbours, they think I am being unreasonable and it has resulted in yelling and insults.
They say I should just call them if I need to get out and a car is blocking. I think that is unreasonable for several reasons. 1.) If I need to get out for an emergency, I should not have to call someone to move their car. 5 minutes can be a matter of life and death. Maybe a little extreme, but you get my point. 2.) Since the garages in the back are open and sometimes I leave my backdoor open I am concerned for my safety and theft when there are so many different vehicles coming and going.
What is the law here?
I am really being unreasonable to expect that I should be able to leave and enter my driveway with out having to hunt down who is blocking the driveway?
Had this issue in Toronto for 17 years at O’Connor and Woodbine area. We had the right of way over 2 properties to our ‘real’ property to park at the end. Tenants of the corner building and our neighbour were constantly parking behind us with the same idea. Also issues with basketball net IN laneway, the kids would say they’d move after their game. Blockers would say to us if we want to leave via the driveway just knock on some doors to find them, owning our own home with parking this made no sense. Eventually moved to the suburbs.
I own a semi-detached in Ottawa.
There is a Joint Use Agreement which every previous owner & tenant adhered to and complied to A Joint Use and Maintenance Agreement. The present owner has not respect for property mine or hers. I am 76 years of age, live on a pension and keep to a Joint Use and Maintenance Agreement from the time I purchased my home in 1996.
I do not want to use this site to express how difficult it has been apart from it is extremely costly when an attached house built around the turn of the century is not maintained and the impact on adjoining semi-detached house. Added to this is the present owner does not adhere to a Joint Use & Maintenance Agreement.
The only means of preventing future owners & perhaps ourselves is for us to petition our Governments – Federal, Provincial or Municipal and Judicial system listen to us – we Canadians should not suffer at the expense of those who refuse to comply with Joint Use Agreements, Mutual or other wises, the expense is horrid – destroys families,
Exploits middle class or low income citizens so that sometimes the only alternative is being forced from their homes. Please let our politicians know what is reality for those facing the dilemma. Please write your local, provincial and federal politicians to stop this nonsence.
So I’m a little confused. I’ll be parking our car in the garage at the back from now on. We share a mutual drive between our two homes. Come winter I need the mutual drive shovelled so I can drive out to work. What obligation does my neighbour have for snow removal on his half??
I am owner of a house and I have to share my driveway with the next door neighbors both houses have garages on the back, the problem is :they supposed to parked their cars inside of the garages instead they used their garages for storage and the cars are parked in the space that had to be free so they can turn around and get in or out by using the curved according with the deed, to get in or out they using part of my patio to turn around and they destroying my property is a lot potholes is there any obligations from them to repair or maintaining the driveway and the damages?
I share a driveway with the neighbor. We shovel or snowblow our side …she doesn’t. Are we suppose to shovel or snowblow her side also?
We are the servient owner , the dominant owner using our driveway to pass a vechicle, when i used a snow blower it actually throws on their right of way, which is a private easement, if they wanted to use the land they have the obligation to clear it up and shovel the snow to enjoy the benefit of our land am I. Right?