Is there an intention to abandon when a permanent structure has been constructed over a right of way?

Ontario, Canada


The following excerpt is from Yekrangian v. Boys, 2021 ONCA 629 (CanLII):

An intention to abandon is found more readily where a permanent structure has been constructed over the right of way, and the holder of the right of way has not objected to it: see, analogously, Tasker v. Badgerow, [2007] O.J. No. 2487, at para. 41. The construction of a permanent structure that completely obstructs a right of way communicates that the right of way will be permanently and totally denied to the holder. If the holder does not object, the court may infer that the holder acquiesced, and may infer that the holder intended to abandon it. Where a permanent structure constitutes a partial obstruction only, it will be more difficult to infer that the holder intends never to assert the right conferred by the easement, and it may be possible to conclude that the holder abandoned the use of part of the right of way only. (i) 174 Strachan

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