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Esquimalt couple ordered to remove part of patio, rock wall

Dec 20 2011

An Esquimalt couple have been ordered by a B.C. Supreme Court justice to remove part of a rock wall and concrete patio from an easement by July 1, 2012.

Esquimalt resident Darlene Merner took her neighbours, Rene and Ruth D'Hollander, to court over the wall and patio, seeking damages and costs.

Justice Keith Bracken refused to award damages but ordered the D'Hollanders remove the offending section of patio and rock wall. He also ordered them to pay Merner's legal costs.

The parties own adjacent properties on Beatty Street in Esquimalt. The easement is four to five metres wide and lies along the west side of the D'Hollanders' property, running from the southern end of Merner's property and directly to the waterfront.

The easement is on land owned by the D'Hollanders but grants Merner "full free and uninterrupted right and easement at all times ... to enter upon and pass."

Merner testified that the previous owners of the D'Hollander property had built a patio that encroached on the easement by more than a metre. She did not consent to the encroachment but did nothing about it to preserve the good relations she had with those neighbours, court heard.

The D'Hollanders were aware of the easement when they purchased the property in 2003 "but had some uncertainty about the exact location of its boundaries, as the survey pin could not be found at the southwest corner of the property," the judgment reads.

The old patio had sunk and the D'Hollanders decided to reconfigure it to shore it up. They discussed their plans with Merner and she opposed the proposal on the basis that the encroachment would be broadened. They went ahead anyway.

Bracken said the easement is there to guarantee access to the property to the rear. "Even if the plaintiff has not used the easement, she and her successors in title have the right to do so whether or not they actually choose to exercise their rights," said Bracken.

The D'Hollanders have six months to remove the section of patio encroaching on the easement.


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