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| 59 Belvedere Rd. |
A judge has shot down a family's attempt to claim a piece of land behind their house at 59 Belevedere Rd., in an area with perhaps the most expensive real estate in Montreal.
The decision, handed down just before Christmas, weighed testimony made in May in which longtime owner Claudia Karkoukly and her son, Eric Aintabi who bought the house from her on April 27, 2010, said they should not have to move their fence back from part of Summit Park.
They didn't deny that the certificate of localization indicated that part of their backyard was not initially their land, but they that it had become theirs through something called acquisitive prescription.* (There's a term to remember when the Pharmaprix cashier asks if you're going to pay for the dental floss you thought was well-hidden in your pocket - Chimples).
The 11,589 square foot property - in a posh area where houses can cost $9 million - was sold on Feb. 26, 1996 by Raphael Fleming to Claudia Karkouly.
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| Owners were forced to bring their fences back in |
Westmount removed a fallen tree at one of her neighbours' homes in 2007 and an official noticed that the fences on four homes were set up well into city property.
Each of those owners were sent letters saying that they had to pull their fences back, as that land belonged to Summit Park, an urban forest and bird sanctuary officially protected in 2006 by the province. They noted that the deforestation and manmade structures were all illegal and that those fences must be removed.
Westmount acquired the Summit Park lands in 1940 from The Royal Institution for the Advancement of Learning on the condition that it always remain for the use of a park or playground.
Karkoukly's lawyers argued that she bought the house with the fences already in that spot and that inspectors had come many times to look at various things and had taken many photos of the lands, which were pretty much inaccessible to the public anyway, therefore she had rightfully acquired the property by "having had peaceful, continuous, public and unequivocal possession for more than ten years," as the acquired right law states.
Her lawyer also pointed out a description the City of Westmount website stating that the park started beyond the homes, but Westmount said that was just an error and isn't binding.
So it was a good battle but Justice Marie-Claude Lalande handed down a ruling on Dec. 12 saying that no, it was indeed City of Westmount property and that they'd better clear their stuff off pronto.
* Acquisitive prescription cases are not uncommon but they're usually out in the sticks where land divisions are less clear and the property considerably less valuyable. There's already been one decision on a case this year in Frelighsberg, lost by owner Betty Perry, Sarto Mireault also lost one in Ste. Therese, as did Louis Bastien in St. Lambert in Nov., Tania Laroque lost one in Vaudreuil Dorion, a group of homeowners won an acquisitive prescription case in some place called Isle aux Coudres, in Aug. And so on.
This was my old hood. I remember my grandfather trying to pull a similar stunt on the on the other side of Cote Des Neiges where he had a house bordering Mount Royal Park and tried to steal an extension to his driveway. I think his end game was to turn beaver Lake into his private swimming pool but eventually the city caught on to his shenanigans.
ReplyDeleteThe same sort of thing happens along railroad rights-of-way. Years ago, you could see it along the CN tracks bordering the properties on the south side of Ronald Drive in Montreal West. There were also areas like that along the CN line to Deux Montagnes. People will often start a small vegetable plot just on the other side of their fence. Then a neighbour does the same. More join in. Gradually the plots start creeping closer to the tracks. Somtimes the fence is removed and replanted at the end of the "new" plot until someone from the railway notices.
ReplyDeleteThere was a situation like that in West Vancouver. A railway was abandoned in 1928 and the tracks were pulled up. The railway however, never relinquished their right-of-way. People on both sides started extending their backyards. People built illegal sheds and small garages. Some properties changed hands over the years. In 1956, 28 years later, these newer property owners were surprised to learn the railroad was reclaiming the right-of-way for tracks again. Most never knew a railway had ever even run through "their" backyard.
perscription - using this word creates arguments that nobody wins because nowhere can we find an acceptable definition. We know it doesn’t mean what you have filled at the pharmacy.
ReplyDeleteSuch "over-the-fence" garden plots can be seen from the east side of the Westminster Avenue bridge alongside the south side of the CPR tracks.
ReplyDeleteNot too clear in the Google photo looking east:
https://maps.google.ca/maps?hl=en&ll=45.456946,-73.655934&spn=0.000004,0.002411&t=m&z=19&layer=c&cbll=45.456946,-73.655934&panoid=7fdPvsvl9UIfCE2qV4LMfg&cbp=12,14.02,,0,1.8
I seem to remember from law class that railroads were immune from people pulling this scheme against them?
ReplyDeleteRe: the view from the Westminster bridge: rotate the view 180 degrees to see the view from the other side of the street. There are (or used to be) gardens (behind the trees) on the left (south) side of the view, which extended down to the tracks.
ReplyDeleteOn the right (north) side, there is a Hydro ROW (technically private, but dog-walkers are plentiful) between the houses and the tracks. There may be more gardens on the track side of the ROW. I should check if fences are creeping into the ROW.