road access

“In my business, familiarizing buyers with what they need to know involves some new terminology,” says Chris Winney, a broker with Royal LePage ProAlliance Realty in Northbrook, Ont. Here are a few potentially confusing terms for cottage buyers.

Road access Wait, how is that confusing? There’s “road access” and “water access.” Simple! But this term can require some explanation “if part of the way into the cottage takes you from a township-maintained road to resident-maintained lanes that may criss-cross neighbouring properties,” says Winney. “That’s when using a local lawyer is beneficial; they know the area well and understand how the buyer may or may not be impacted by this situation.”

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Road maintenance fees “It’s important for buyers to understand that when they purchase a cottage that uses resident-maintained lanes for access, they need to accept that there will be an extra annual shared fee,” says Winney. Everyone who uses the road helps pay for the road: for maintenance—grading and dust control if it’s gravel, for example—insurance, and potentially snow plowing. (Even if you don’t use the cottage in the winter, your cottage association or road association may expect you to pay for winter maintenance.)

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Crown land Any land, lakes, and rivers managed by the government. Is there any Crown land near the lake? “Having it facing or around your property is beneficial,” says Winney. “It’s a constant view, it probably means the lake is clean, and it provides everyone with privacy.” Not to mention trees. Everyone loves trees!

A guide to buying and building on Crown land in Ontario

Public access points This could affect how much boat traffic the lake gets. “Are there public access points on your lake or is it a closed system? On larger lakes, both residents and visitors can often put their boats in at different boat launches,” says Winney. On smaller lakes, you may need to own property to be able to boat there.

Lake level Well, duh: it’s the level of the lake! But you’ll want to investigate what controls it, and therefore, what can affect it throughout the year. “Is it spring-fed? Is it part of a river chain controlled by dams? Does the water level fluctuate to allow you to keep your dock in place in the winter?” says Winney. “Knowing this happens will reassure a buyer when the water drops at the end of October by five to six feet. Yikes if they didn’t know!”

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There is a right-of-way through my property that dates back to horse and buggy days. Traffic has obviously increased; it is now being used by heavy construction equipment to build and remodel cottages beyond our property. Is this legal? Can it be stopped? Can an old RoW be revoked because of a substantial change in use?—Jan Le Clair, Sand Lake, Ont.

Ian Keay, a managing partner with MKC Law Office in Peterborough, Ont., is answering your questions with…more questions. “Does the party using the right-of-way have that right in their deed? If the answer is no, then, does the party using the right-of-way have a prescriptive right-of-way?” (That’s when the easement is created after a party uses the road for a certain number of years, giving them a form of “adverse possession”—a.k.a. squatter’s rights—that legally allows them to use the road.)

If those using the right-of-way don’t have that right in their deed, you could apply for an injunction (a judge’s order) to keep the construction equipment off your property, says Keay. “But the party doing the construction may be able to establish a prescriptive right-of-way, which could defeat the injunction.”

Okay, back to square one. It’s true that the construction equipment might exceed “what was contemplated when the original right-of-way was granted,” says Keay. Or, the disruption could amount to “substantial interference,” considered offensive, inconvenient, or annoying to a “reasonable person.”

The former does happen. For example, a right-of-way established only so that a farmer can lead cattle to the edge of a lake to drink, or a right-of-way to only access parking. Unfortunately, “most often with ‘old’ rights-of-way, there are no restrictions or specifications whatsoever,” says Keay. “And I doubt the usage amounts to substantial interference.” (Yes, apparently, there is equipment that is more annoying than construction equipment.)

Even if it does, Keay doesn’t think that the right-of-way would be revoked. “It’s more likely that the continued use of the road by the heavy equipment could be restricted or prevented. Only a judge can do this.”

So, you might not be able to stop all traffic on the easement, but if it keeps the noisy equipment off your property, that’s a win, isn’t it? Contact a lawyer with a strong background in easements, and go from there.

Got a question for Cottage Q&A? Send it to answers@cottagelife.com.

This article was originally published in the May 2022 issue of Cottage Life magazine.