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.