Property Access
Can I get there from here?
In the big city, or even in a small village, it's a pretty safe bet that you can get right to your driveway on a public road, maintained year round. It would be pretty rare not to have all the usual services, water, sewer, snow removal, garbage pickup and so forth.
Life is different out in the country. Some roads have not been assumed by a local municipality, or ever if they have been, do not receive all services. Before you buy, it is essential to be sure what you're getting, and also how you're going to get to it.
There are thousands of miles of private roads in rural Ontario. If you are buying a property on one, you had better be sure you have access. Discuss the matter with your real estate agent and/or ask your lawyer before the offer is accepted or make sure there is a condition giving enough time for the access issue to be looked into.
Buyer beware is alive and well! If you wait and it is too late, it is too late….you deal with what you have and no one else is responsible! Buyer beware is alive and well!
PRIVATE ROADS
"Here lies the body of Sammy Jay,
Who died defending his right of way.
He was right as he went along,
But he's just as dead as if he was wrong."
A private road is a strip of land that, by definition, is owned by someone. Cottagers may use it to get to their property, but the conflict can arise because someone else still owns the land or does not like where the road is ‘on the ground’ anymore.
How do you get a right to use a road that someone else owns?
A RIGHT-OF-WAY
Leading all the Way... to a municipally maintained road. It has recently been made clear to me that people think ‘deeded access’ or a ‘deeded right of way’ is the be all and end all way to confirm access to your property. Not quite so much says I!!
If you must buy on a private road or travel over property you do not own to get to your property, consider having something in the offer confirming the access method/route. Your offer could specify that the property has "a right-of-way" to a municipally maintained road and outline the basis for the right of way. If this is your situation consider asking your lawyer to provide some input on things you can consider or negotiate a clause into the agreement allowing you time to confirm access.
Usually, a right-of-way is referenced on a deed. It gives you a right to pass along the road, which, remember is owned by someone else. It doesn't give you the right to park on or even beside the road - just to go over. And remember, a right is not a right until someone gives it to you. There is ‘right’ in right of way. Just because a right of way is described, written down, whatever, does not mean someone won’t try to block your use of the right of way. Having it written down makes it less challenging to enforce. It may not be easy, particularly if there is an obstreperous lawyer on the other side. Yes, some of us can be like that…sad but true!
In some special cases, such as when you want to put a hydro line over a road, or a water line under a road, you may need to be sure that you have a right-of-way "in, over, above and along" a private road.
It is good if a right-of-way is surveyed and shown as part(s) of a reference plan (just a certain kind of survey). A right-of-way benefits a specific property/ies. It could be referenced in your deed and in your neighbour’s deed! The right of way still exists, it can just be harder to enforce your right if you have to.
Many older rights-of-way are narrower, for example 20 feet or so….vehicles were narrower back in the day! If a right-of-way is 66 feet wide it is easier for it to become a formal road.
A COMMON-LAW RIGHT-OF-WAY
Use over a period of time can establish a right of way. This is not uncommon when one buys a cottage. Many cottages are accessed over a private road or lane way. Some are pretty rough and hard to navigate; others are well maintained. All people using the right of way benefit so there is usually little by be gained by giving another user a hard time. Treat others as you wish to be treated and all is usually good. Alternatively, get a survey to show the right of way location. When that happens, see about having the survey regsitered on your property ownership. Again, everyone usually benefits so all contributing to the costs makes it cheaper to have done, spread the cost over a few and each pays less than otherwise.
THE "ROAD ACCESS ACT"
Even where there isn't a right-of-way by deeded or by proven usage, you have some protection from being suddenly barred from a road leading to your cottage.
This may sound good, but it isn't as good as it sounds!
This Act assures the person who owns the bed of a road does not just block off those who use it. At the least, he has to ask a Judge first. Maybe that gives you a right of access, or maybe, as some judges have felt, it is just a way to help assure that no one finds the cottage blocked when they show up for the long weekend. That doesn't mean the road can't be cut off, only that whoever wants to cut it off must go through the proper process… it can be hard to convince a Judge to block property access.
ROAD ASSOCIATIONS
For many private roads, there are Cottagers' or Road Associations. Annual fees are typically $100-$400.00 per year, and usually the service and security which comes from being part of a group is well worth it. Before buying, find out if this applies to you.