Cottage ownership is a dream for many Canadians. The idea
of a remote getaway where one can leave behind the stresses of the
work week for a quiet, peaceful weekend with the family appeals
greatly to many. However, reaching one's rural hideaway
can be as difficult for owners as for those they wish to leave
behind during their weekend escape. Issues regarding legal
rights of access to cottage properties and the maintenance of the
roads or paths providing such access are common and something that
all potential purchasers should keep in mind. Provided below
are a few examples of such issues.
The easiest form of access to a property is a public
highway. At common law, the public has a right of passage
along every public highway and the owners of neighbouring lands
have a right of access to them. These rights can only be
interfered with in certain situations. However, the status of
a piece of land as a public highway does not automatically include
an obligation for the province or a municipality to maintain
it. Even if the municipality has assumed the responsibility
for maintaining a highway, that duty may only be seasonal in nature
and may not include snow plowing. This may not be an issue if
a purchaser is only seeking to obtain a summer getaway spot.
However, if one wishes to enjoy their cottage or cabin year round,
a property with only seasonal access is probably not right for the
Rights of Way
If a parcel of land does is not directly reached by a public
highway, one may have access to and from the nearest public highway
via an easement called a "right of way" over a
neighbour's land. A right of way may arise in a number of
ways, including through express agreement as well as customary
use. The availability of customary, or prescriptive, rights
of way depends on whether or not the property is still registered
in the Registry System or the Land Titles System, and when people
started using that path to access the property.
Care should also be taken to determine the extent of the right
of way. A right of way may be limited when and how it may be
used. Given the variety of uses to which one can put a
cottage property, it is important that purchasers instruct their
lawyers to perform the proper searches and make the right enquiries
to ascertain whether particular properties are right for them.
The Road Access Act defines a strip of land that has
been used for vehicular access to a piece of property that is not a
public highway or a right of way as an "access
road". No one may obstruct an access road without a
court order. However, the access road may be closed to
prevent injury to the owner's interests in the land. A
person lawfully using an access road is simply not a trespasser
and, as such, has no underlying legal right in the land.
Consequently, a seller has nothing that they can convey to a
purchaser and there is no guarantee that the facts required to
sustain the access road will continue indefinitely.
If one is lucky enough to acquire a waterfront cottage property,
there is also the possibility of water access. The public has
a fundamental right of travel over navigable waters that can only
be limited in certain circumstances. However, it must also be
remembered that the Crown owns the bed of every navigable waterway,
and shoreline structures like boathouses or docks often encroach
upon the Crown's property as a result. The Crown has
generally tolerated these structures, so long as the owner has
obtained a lease, licence, or permit. It is also possible
that you do not own up to the water's edge, only close to
it. Purchasers of waterfront property should take care to
ensure that previous owners properly obtained such an allowance, or
may find themselves incurring additional unexpected expenses to use
their dock or boathouse.
Cottage ownership may be a dream for many, but it comes with its
own unique challenges. The issue of access is one such
challenge. Potential purchasers should take care to identity
the uses to which they intend to put their rural retreat as issues
regarding how and when they can access their land can affect their
enjoyment of the property.
Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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