The Ontario Superior Court’s decision in LeVan v. Hatton-Bauer, 2026 ONSC 1596, is a useful refresher for solicitors closing cottage and rural transactions on how prescriptive easements continue to haunt title even decades after Ontario’s conversion to Land Titles. Justice Reid’s reasons confirm that a pathway used by a neighbouring cottage owner for over 20 years before Land Titles conversion can ripen into a binding easement that no parcel register will reveal.  The decision also reaffirms strict limits on what the dominant owner can do with that right.

The Pathway and the Parcels

The dispute concerned two adjacent cottage parcels on the shore of Lake Rosseau in Port Carling. The properties had been a single Bauer family holding since 1952 and transferred in 1971 to the children, Donald and Gerald Bauer. The severance of the single parcel was registered       in 1974 between the two brothers. Hatton-Bauer acquired the property from Gerald Bauer, the uncle of her late husband, in September 1985. LeVan, being the daughter of Donald Bauer, bought her half in 2017 from her father. The LeVan parcel enjoyed a registered right-of-way across the Hatton-Bauer property for road access, but at issue was a separate, unregistered footpath leading from that right-of-way to an elevated area called the Plateau, where the LeVan septic bed and tile field were located. The LeVans had widened, gravelled, and effectively converted the footpath into a vehicular access route around 2022 and 2023. Hatton-Bauer objected and sought a declaration of trespass.

Land Titles Conversion and Lost Modern Grant

Both parcels were converted to Land Titles on September 17, 2007. Justice Reid restated the settled rule that no new prescriptive easement can arise after Land Titles conversion, and statutory prescription under s. 31 of the Real Property Limitations Act requires the 20- or 40-year period to immediately precede the application, which here was impossible. The LeVans therefore had to rely on the doctrine of lost modern grant, which permits a court to recognize a prescriptive easement that was completed before conversion.

The Prescription Analysis

The court found the four traditional elements (dominant and servient tenements in separate ownership, reasonable necessity, and 20 years of continuous, uninterrupted, open, peaceful, and unpermitted use) were not met during the 1974 to 1985 ownership by the two Bauer brothers. The brothers’ shared family history, combined with a statutory declaration of possession sworn by the selling brother in 1985 that made no mention of any adverse use, meant either there was permission or the use was tolerated as good neighbourliness. From 1985 to 2007, however, Hatton-Bauer offered no evidence she even knew of the use, much less tolerated it out of neighbourliness, and the entrance to the pathway was clearly visible from her cottage. Acquiescence was inferred and not rebutted, so the easement crystallized before Land Titles conversion.

Scope Frozen at the End of the Prescriptive Period

The court then sharply limited the easement’s scope. Borrowing from Henderson v. Volk and Barbour v. Bailey, Justice Reid held that the dimensions of a prescriptive easement are frozen at what they were at the end of the prescriptive period, here, a 5-foot-wide footpath suitable for foot traffic and a small ATV. The post-2007 widening, gravelling, tree removal, and use for full-size vehicles all exceeded the easement’s permitted scope. The LeVans were ordered to remove unauthorized alterations and chattels at their own expense.

Practical Lessons for Transactional Counsel

1. Land Titles conversion does not extinguish pre-existing prescriptive easements, it merely stops the clock. The parcel register for any property converted in 2007, cannot be assumed to disclose every right that burdens the land.
2. Carry out a site inspection. Ask the vendor about informal access by neighbours and make pointed inquiries about any visible pathways, gates, driveways, dock approaches, septic accesses or utility runs crossing the property line, particularly where adjacent parcels were once held in common or by related families.
3. Ensure any vendor’s statutory declaration of possession is accurate, contemplates informal uses by neighbours, and does not understate or paper over them. The court drew real inferences from what the 1985 declaration did and did not say.
4. Where clients own the servient parcel and tolerate a neighbour’s use, silence is dangerous. A short written acknowledgement that use is by permission and revocable preserves the option to terminate later and defeats a prescriptive claim outright.
5. Where a client buys property already burdened by an apparent informal access, an estoppel certificate or release from the neighbour can resolve the issue at closing rather than years later in litigation.
6. Easement scope is not infinitely elastic. Warn dominant-tenement clients that widening, paving, or converting a footpath to a vehicular route may exceed the historical use and trigger restoration orders, even where the easement itself is upheld.

Takeaways for Transactional Counsel

Title in Ontario is not exhausted by the parcel register, particularly for rural and cottage lands. Inspect, inquire, document permissions in writing, and warn clients that buying a dominant tenement does not buy control over the burdened land, only the right to use it as it was historically used.