Realty Realities

by Dave Smith, Partner

 

Nathalie Tinti has told you about the issues surrounding ownership of the shoreline in front of your cottage (Don’t let an Original Shore Road Allowance (OSRA) Take You by Surprise!). In addition to shore ownership, a major issue that we often see in cottage properties is how you can access  your dream escape on the lake.  If you are fortunate enough, and have probably paid a premium, to obtain a maintained municipal road providing access, you likely do not have a concern. You will want to inquire and ensure that the road is not seasonal only because that would mean that it is probably not plowed or maintained during the Winter.

 

However, if your access seems to be by a “private” road, a number of possible rights and obligations may apply.

 

There may be a registered right-of-way or easement to connect a municipal road to your property.  That is a good thing!  The  documents that give the easement or right-of-way will need to be reviewed carefully to determine exactly the rights that you have for travel, and to make sure  that such rights are assignable.  Often there is  an agreement between neighbours who enjoy the benefit of the access route, to share in the cost of its upkeep.  But there often is not, and a more informal relationship exists.  Don’t be surprised when you find out that certain users do not share in the annual maintenance costs. These are usually the people that use the lane the most!  They say that they never wanted the intrusive traffic laden laneway in the first place, and prefer to get to their isolated cabin in the woods by water.

 

The lesson:  question the neighbours to find out who’s in charge and what are the rules.  Many cottage properties do not have a registered easement or right-of-way at all.  Some try to rely upon the Road Access Act which was first enacted in 1978 to prevent the arbitrary obstruction of an established access route.  The Act has been partially successful but not entirely.  The Act does not create any rights.  The person enjoying the access has no right to improve or alter it.  And the owner of the property over which the access is found has no obligation to maintain it.  So the muddy ruts may have to remain.  You may not be able to expand the route to accommodate your boat and trailer.  But the owner cannot block or obstruct your access.

 

There is substantial law that deals with prescriptive easements, easements by necessity, equitable easements, express or implied grants, easements by proprietary estoppel, etc. It’s a mess and it’s ugly.

 

Caution – carefully canvass your legal rights on access.  Be careful out there.

by Nathalie Tinti, Associate 

With spring coming, and now almost going, people are flocking to their cottage full of excitement to clean out the mouse poop and throw their Muskoka chairs on their dock.  It won’t be long before black fly season is over and you can enjoy an ice cold one looking out over your lake.  One problem, your dock isn’t quite as stable as it used to be and you have come to the conclusion that it is finally time to replace it.

Knowing that your neighbour down the way was charged for not applying for his permit last year when he built his dock, you realize that you need a permit to rebuild.  And since you are rebuilding anyway, you might as well make your dock into that gorgeous “U” shape 7,000 feet of dock space that you have always wanted!  Off you go to your local Municipal office, full of energy, drawings in hand and a smile that would make your grumpy aunt Fanny May break into song.  Within minutes of being in the Municipal office, you hear  4 words that you have never heard before that are about to throw you for loop… “Original Shore Road Allowance” or OSRAs as we in the real estate business like to call them.

Along with those 4 words comes an explanation as to what it is and why you don’t own it.  And then usually comes a call to your lawyer, because it simply cannot be true that you do not own to the water’s edge of your very expensive cottage property.  Guess what, unless you or a predecessor owner have purchased it, you do not own to the water’s edge of your waterfront property.

In and around Georgian Bay, Parry Sound and Muskoka, 66 foot (or 1 chain as they like to say in the golden olden days) shore road allowances are the rule rather than the exception.  The reason for these original shore road allowances is not thoroughly documented, however, it appears that the reason for them probably dates back to times of logging operations.  These OSRAs provided the lumberman with the right to trespass on private lands to haul logs.

The good news is, most of the time, these OSRAs can be purchased from the Municipality.  Thanks to snowmobilers and ATV operators finding out about the OSRAs and using them as trails, much to abutting property owners chagrin, pressure from tax payers forced municipalities and the Government to sell these ORSAs to abutting property owners in order to secure their privacy.  The real purpose of the OSRAs has long since passed, and municipalities now have the option of retaining them or selling them. 

The process by which this happens will be the topic of my next blog.