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Historical right of ways

I own two properties in downtown Halifax. These properties had historic right of ways going back to the 1800's to cross the properties.

In 1972, the City of Halifax expropriated the lands where the right of ways existed for the purpose of road expansion. The right of ways continued to be used by the residents. The road building never occured.

In 1987, the City of Halifax sold part of the land to a developer who constructed condominiums. The right of way was paved but the other residents were stopped from using it.

My lawyer advises me that because the land was expropriated, the historic rights of way were extinguished. The residents were not notified that their rights of way were extinguished and continued to use them for an additional 15 years. Even though the condominium owners protest, the right of way continues to be used.

Can I re-establish a valid right of way?

Re: Historical right of ways

I assume that the two properties which you own had the benefit of a right of access over adjacent property, at least until the 1972 expropriation. If the right of access was extinguished at the time of the 1972 expropriation then continued use of the adjacent property for access without the owner's permission is probably a trespass. However, if you were the owner in 1972, you were probably entitled to compensation for loss of that right of access.

Is the historic right of way the only available access route to your property? Is your property landlocked? Perhaps the only way you can obtain a right of access is through negotiation with the adjacent owner. Alternatively, maybe the City would consider expropriating to restore access to your property?

Your current situation sounds similar to the property owner in Parry Sound who posted a few messages recently.

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Replying to:

I own two properties in downtown Halifax. These properties had historic right of ways going back to the 1800's to cross the properties.

In 1972, the City of Halifax expropriated the lands where the right of ways existed for the purpose of road expansion. The right of ways continued to be used by the residents. The road building never occured.

In 1987, the City of Halifax sold part of the land to a developer who constructed condominiums. The right of way was paved but the other residents were stopped from using it.

My lawyer advises me that because the land was expropriated, the historic rights of way were extinguished. The residents were not notified that their rights of way were extinguished and continued to use them for an additional 15 years. Even though the condominium owners protest, the right of way continues to be used.

Can I re-establish a valid right of way?

Re: Re: Historical right of ways

Mr Melville/Bob Russell
==

Thank you for your response.. the plot gets thicker. I have spent the last two days at the registry of deeds.

The city bought up the lots for road expansion in the 1960's and 1970's. The plan was to destroy downtown Halifax with a major expressway. The citizens of Halifax protested and the project was halted. Meanwhile they had had the vacant land and the right of way continued to be used.

In 1986, the city took about 1/2 of the vacant lot that they and sold it to a condo developer.

The deed of sale was June 7, 1986

The condo developer wanted to extinguish the right of way so they got the city to expropriate the land.

The city did the expropriation on July 11, 1986.

Problems I see with the expropriation are:

1) The reasons given in the expropriation are "intended to expropriate any possible unacquired interests arising out of the acquisition by the City of Halifax of the lands now described as lots C-1,C-2 and C-3"

2) Where is the public good which is the basic reason for expropriation?

3) The neighbours enjoying the right of way were not informed about the expropriation.

Re: Re: Re: Historical right of ways

I am rather confused - the city sold 1/2 the land to the developer then bought this same land back from the developer? If this is the case then aren't these lots now city property and are they the ones not allowing access and why would they do that?

Re: Re: Re: Re: Historical right of ways

Talking with lawyers and my own reading it appears to be something like this.

The city had this vacant lot and the only use of it was as a right of way to 2 adjacent properties. The owners of the properties maintained the right of way and plowed it in the winter.

The city then sold half the vacant lot to developers for a condominium project. After they had deeded the land to the developers, the developers realized that the right-of-way was being used.

The city agreed to expropriate their own land. I am told this is done sometimes to extinguish any unknown claims which might exist. They should have notified the owners of the adjacent properties but they did not-- in fact if they had wanted to expropriate the right of ways, they should have served the expropriation on the persons who were using it and not on themselves.

It all smells of the developer being in bed with the city and the city pulled a fast one on their behalf.

Re: Re: Re: Re: Re: Historical right of ways

You might want to check out some of the cases involving right of way on the www.courts.ns.ca web - look under court decisions - search right of way. There is a section on right of way by necessity - that appears to indicate that if there is another access to the property - no matter how inconvenient - that there is no reason for another access being granted. You did not make it clear if this is the only access to your properties or not.