I just found out that the boathouse and dock in front of my cottage were constructed on a municipal road allowance, and that I do not own them. What can I do?
Cottage season is in full swing on this Canada Day weekend, and it’s a busy season for real estate agents in holiday country. Buying a summer home in cottage country, unlike a city real estate transaction, makes road access and waterfront issues of critical importance.
At a Law Society program presented to 1,400 real estate lawyers this past April, Bracebridge lawyer Nathalie Tinti discussed why shoreline road allowances are so important in cottage purchases.
She explained that in many parts of Ontario, from Georgian Bay to east of the Ottawa River, surveyors of Crown land in the late 19th century were instructed to lay out a 66-foot strip of land for commercial road allowances along the banks of lakes and rivers.
For several decades after about 1880, these roads were used for logging and transportation of goods. They have little commercial purpose now, but have become critical issues in cottage country real estate transactions.
The shore road allowance lies between the cottage property and the river, or lake, it faces. Tinti explained that if this road allowance exists, even if it is only on paper, a cottager will not own to the water’s edge of the property unless title to the roadway has been purchased.
Since the road exists legally on paper, the cottager’s beach could be a road that can be freely enjoyed by members of the public, including snowmobilers and ATV users.
Tinti imagined a new buyer enjoying a cup of coffee on the deck of a million-dollar cottage on the day after closing. Suddenly a parade of ATV enthusiasts comes roaring by on their motorized bikes, and the cottager becomes very unhappy very quickly.
But it gets even worse. In my practice, I have seen many instances where the boathouse, the dock and even the cottage itself have been built on a shore road allowance which the cottager does not own. Unless the cottager buys the roadway from the municipality or signs a licence agreement to pay an annual rental, the structures are effectively illegal.
This is why it is especially important to obtain a land survey when buying waterfront property, so that the purchasers can determine if anything has been built on land not owned by the cottager.
For municipalities in holiday country, the sale of road allowances has become a lucrative source of revenue. Rates have doubled in recent years.
Buyers and existing owners of Ontario lakefront property can contact the local municipality to see whether local shore roads are for sale. In some places, called areas of retention, the land is not for sale.
As well, the owners will have to obtain a reference plan of survey from an Ontario land surveyor, in order to record the exact location of the land being purchased. Other costs will include the municipality’s legal fees and application fee, the buyer’s legal fees, and the costs of a bylaw and site plan agreement if they are required. The entire process can take between six months and a year.
Another alternative is to obtain a licence of occupation from the local government at an annual cost of $500 to $1,000 a year. While it may allow a private dock or boathouse to remain on public land, the permit may be terminated at any time, and it will not prevent public access to the shoreline property.
If you’re in the market for a piece of heaven fronting on an Ontario lake or river, make sure you have knowledgeable professionals on your side. And make sure that the purchase agreement deals with the shoreline road issue.
Bob Aaron is a Toronto real estate lawyer. He can be reached at firstname.lastname@example.org . Visit his website at aaron.ca.