Snow, shoveling and mutual driveways

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 tneal@trebnet.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.