May 14, 2024
With spring blossoming, cottage season is approaching. For a lawyer, that means that the status of access roads becomes a concern.
If you are buying rural property, one of the issues might be road access.
Properly created roads vary from formal roads dedicated to municipal ownership and control, to a formal easement over private property, or a common road shared by adjoining landholders in some form of joint ownership.
Historically, however, many adjoining properties relied upon informally created roads for access. Sometimes this was because two or more properties were subdivided out of one without proper attention to the status of the road. In other cases, neighbours granted permission for the access. Some other situations have their roots in a trespass, where the landlocked owner either willfully or without thinking drives across the neighbouring property, as if they had a right to do so.
In Ontario, the Road Access Act exists to prevent altercations over access roads. It provides that the owner of a “road” (which might be a trail) may not cut off the access of their neighbours without a court order closing the road.
The Act does not create any rights of access, it is merely there as a convenient way to settle disputes without shotguns. Unless the person using the road can establish some legal right. The court may close the road and they lose their access.
Although “may close” is discretionary, the situations where judges have refused to close a road where there is no legal right of access are rare.
If you are acquiring a property, you need to understand what rights of access you enjoy, and what access others might claim to cross your lands. If you are a buyer, you may be required to complete the transaction if the road access is not as of right by an easement, encroachment or right of way.
Since properties under the Land Titles Act are not subject to adverse possession claims, it is increasingly difficult for an encroachment to create a right of way. However, there are areas of Northern Ontario that started out under The Registry Act and if your property was within that system of title, a right of way by adverse possession might have been created.
If you are a buyer of a property with informal access, you must decide how much risk you are willing to accept that your access might be terminated. Sometimes an easement can be negotiated, but better to know that before you buy. The agreement of purchase and sale ought to accurately set out your understanding and expectation as to access, to better protect your rights.
Though realtors do a good job in drawing up most agreements, you always have the right to have a lawyer look them over, and that might be particularly important if you truly want to enjoy that cottage getaway.
WHAT WEILERS LLP CAN DO FOR YOU
Our real estate team are experienced and knowledgeable about access issues, including the peculiarities of the dual registry systems in play in Northwestern Ontario. If you hire us to review the agreement, or to complete a transaction, you will receive the personal attention that you desire in a “dream home” transaction.
If you are unfortunate enough to find yourself in a road access dispute, our litigation team has the skills to maximize the results for you.