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 purchaser.
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.