Paper Written for “Roads Scholars” program for OBA by Paul Rabinovitch – How-to: Become a ‘Roads’ Scholar. Cottage Country Road and Access Issues
How-to: Become a ‘Roads’ Scholar. Cottage Country Road and Access Issues
By: Paul Rabinovitch
Managing Partner, HGR Graham Partners LLP
Below is a discussion paper I presented to the Ontario Bar Association on the topic of Cottage and Seasonal Property access in Ontario on May 17th, 2016. If you are presently grappling with these issues, I encourage you to contact a lawyer, like myself, that specializes in these complex real estate issues.
This paper outlines some specific road and access issues that arise in cottage country. As real estate lawyers, you will undoubtedly encounter some of these issues if you enter the murky world of rural and cottage conveyancing. My objective is to provide you with sufficient background information so that when you encounter a unique road or access issue, you will be able to identify the issue and know how to address it. In addition, this paper may help you protect yourself from potential claims, by highlighting situations where you should either involve an expert, or obtain detailed acknowledgements executed by your clients. This paper does not attempt to be an exhaustive study of all road issues. I refer you to “Russell on Roads” by W. D. (Rusty) Russell, Q.C. which is still the authoritative treatise on roads.
TYPES OF ROADS
Original Crown Road Allowances
Original Crown Road Allowances were laid out by the Crown in the 1800s in a grid pattern, usually one to one and a half miles apart along with the lots and concessions. The lots located between the Original Crown Road Allowances were comprised of 200 acres, 100 acres or were irregular in shape and called broken front lots. The Original Crown Road Allowances were 66 feet in width, which was the length of one measurement of chain used by Crown surveyors to measure land. Many Original Crown Road Allowances have since become concession roads or other types of municipal roads. Frequently, these Original Crown Road Allowances were not laid out in locations that were suitable for the construction of roads. In 1913 the Crown downloaded all Original Crown Road Allowances to local municipalities, so that all Original Crown Road Allowances are now municipal property governed by the Municipal Act, 2001 (S.O. 2001, c. 25) (The Municipal Act).
Unopened Original Crown Road Allowances
Many Unopened Original Crown Road Allowances in northern Ontario never became roads, and remain wilderness today. Some Unopened Original Crown Road Allowances that were used as roads long ago and which were in some cases even considered as “opened” are no longer passable by vehicles and are not considered open roads today. If you walk along some Unopened Original Crown Road Allowances, there may be evidence of “corduroy roads” built long ago. Corduroy roads were made by laying round logs side-by-side in order to create a road surface passable by horse and buggy. When Unopened Original Crown Road Allowances are not established/assumed/opened roads, they are private municipal property that has not been designated for public use. Most municipalities allow the general public to use Unopened Original Crown Road Allowances, but do not allow the public to improve them in any way.
When purchasing rural properties, cottages, or tracts of vacant land in cottage country, it is important to determine if there are any Unopened Original Crown Road Allowances that cross the property. If any exist, snowmobile clubs or all-terrain vehicle associations, or other members of the public may currently use these Unopened Original Crown Road Allowances. As a result, it is important for prospective purchasers to inspect the property and confirm what use, if any, appears to be made of these Unopened Original Crown Road Allowances. If it appears that the Unopened Original Crown Road Allowance is being used in some fashion, then it would be prudent to contact the local municipality to see if they have given permission to any groups or individuals to use it. The purchaser must then decide if the use of the Unopened Original Crown Road Allowance would affect them to the point that they do not wish to purchase the property.
Unopened Original Crown Road Allowances will normally create natural severances, however, it is not possible to sever a portion of a property without obtaining a description acceptable to the local Registry Office. This normally requires a new reference plan. There may be access issues, zoning concerns and building restrictions affecting both the original and the proposed parcel. If a natural severance is created, there is normally no obligation to deal with the municipality for the severance.
The primary sources to review to ascertain whether an Unopened Original Crown Road Allowance traverses a property are: the local municipality; the local County or District, any available surveys; the title search including Crown Patent; maps of the area; Google Maps and Interactive County Mapping.
Unopened Original Crown Road Allowances that Perpendicularly Abut a Body of Water
Unopened Original Crown Road Allowances that run perpendicular to a lake or river and abut the water, should raise a red flag when purchasing waterfront property. Members of the public can use these Unopened Original Crown Road Allowances to access the water, which could impact your client’s use and enjoyment of their waterfront property. In most cases, Unopened Original Crown Road Allowances cannot be traveled by vehicles, which is the reason that they remain unopened.
If the owner of a “back lot” (which is a lot that does not front on a body of water) becomes aware of an Unopened Original Crown Road Allowance adjoining their property, they can apply to the municipality to purchase it. This could potentially add value to their property as it would provide them with access to a body of water. There is no longer any requirement under the Municipal Act, 2001, S.O. 2001, c. 25 (Municipal Act) to offer this land to the adjoining waterfront owners. There are certain notice requirements under the Municipal Act, but they can be as short as one day if posted on the Municipality’s website, or easy to miss if posted on the property in question, when your client does not live in the municipality. There is nothing stopping the municipality from establishing or opening an Unopened Original Crown Road Allowance, building a road, and making it a public waterfront access point. For these reasons, it can sometimes be better to let “sleeping dogs lie”, and not raise any issue with the municipality. At other times the matter should be addressed, because it could become a potential nightmare for your client in the future, and a potential claim against you.
Original Shore Road Allowance
In addition to the grid pattern of Original Crown Road Allowances, the Crown established Original Shore Road Allowances. Original Shore Road Allowances are a specific type of Original Crown Road Allowance that the Crown laid out around the shores of many lakes and rivers. Older cottage buildings, especially boat houses, are commonly located on Original Shore Road Allowances. These types of encroachments can usually be addressed by the waterfront owner purchasing some or all of the Original Shore Road Allowance from the local municipality. If a waterfront property that is purchased includes an Original Shore Road Allowance that has not been stopped up and closed and conveyed to the Seller, the purchaser should make inquiries with the local municipality as to the possibility of purchasing it from the municipality, which can then either alleviate or avoid many potential problems. Historically, Crown Patents or Grants for Original Shore Road Allowances often included reservations to the Crown for certain rights such as logging, minerals and roads. The need for these reservations has disappeared over time, however, the wording of the Crown Patents or Grants may still include them.
There is a standard process in most municipalities for the purchase of Original Shore Road Allowances. The cost of purchasing an Original Shore Road Allowance is generally well worth the benefits of owning the waterfront portion of the property, especially if buildings are located on it. In most cases, the municipality’s solicitor completes the bulk of the work on these transactions. A new reference plan is required to show the area to be acquired. Once the reference plan is deposited, there are certain notice provisions required by the municipality to adjoining owners. The municipality’s lawyer would then prepare the transfer in fee simple to the cottage owner. The costs for the process vary and are largely dependent on the price the municipality charges for the area of land.
Original Crown Road Allowances were laid out in a grid pattern, and as a result were often not located in the most practical places for access roads when cottage areas were settled. Many access roads leading to cottage lakes and rivers run parallel to the shoreline, but are set back from the lake. Sometimes these access roads were constructed by the first cottagers to settle in the area, and in some cases these roads were constructed by municipalities on privately owned land, without the municipality having expropriated or obtained deeds to the land. As a result, in most cases the municipality does not own the fee in the Trespass/Forced Roads.
For this reason, many cottage access roads are referred to as “forced roads” or “trespass roads”. In virtually all cases, these roads were constructed prior to January 1, 2003 and were therefore established, assumed, or opened through the expenditure of public funds or through “statute labour”. Statute labour means that the municipality completed sufficient work on the road to qualify it as a municipal road. For all intents and purposes, forced roads and trespass road are municipal roads. They are maintained either seasonally or year-round as municipal roads, and may have been constructed to municipal standards. Members of the public that use them assume that they are municipal roads, and for jurisdictional purposes, they are. The only distinction between forced roads/trespass roads and true municipal roads is that the fee in a forced road is owned by a private party. In addition, forced roads are not necessarily 66-feet wide. They are the width of the traveled portion of the road plus ditching or clearing, which may only total 40 or 50 feet.
The only ways that a municipality can obtain the fee in a forced road is to have a reference plan prepared and obtain a transfer from the owners, or to expropriate the road. Municipalities rarely seek to obtain the fee in forced roads because of the cost involved. Most owners of forced/trespass roads are aware of the situation and have no objection to the status quo. For liability purposes, the law is fairly clear that the municipality is liable for any accidents that occur on the road, since they are de factomunicipal roads.
Since forced roads are de facto municipal roads, you would not likely be searching the fee in the road to confirm if the municipality owns it. When you do search the property that you are purchasing, you may see that the road crosses the property, although it may not be shown on any surveys, so you may not be aware of it without asking the purchaser about it.
In parts of Ontario, Colonization Roads, which are different than Original Crown Road Allowances, were constructed in the 1850s to early 1900s. Original Crown Road Allowances were laid out in a grid and were not necessarily laid out in a practical manner, or in a location that made sense to the colonization of Ontario. Colonization Roads, on the other hand, were built by settlers who were provided with money by the Crown to build roads in order to encourage colonization. Colonization Roads were therefore built in locations that made sense at the time of colonization.
There are Colonization Roads in the Muskokas, the Ottawa area, and in the Georgian Bay region. Some Colonization Roads have been assumed or opened by municipalities, and are in full use today as municipal roads. Other Colonization Roads have fallen out of use, and may now be “bush roads” that can be traveled by snowmobiles or all-terrain vehicles only. Often, old Colonization Roads are not shown on any maps, including Registry Office Block Maps. Once “statue labour” was performed on a Colonization Road, it became a road, but the fee in it was still not owned by the municipality.
If a Colonization Road runs through a property that your client is considering purchasing, your client should be aware that the property may be subject to the public’s rights to continue to use the Road as it has been used in the past, and/or in the way that it is currently used. Some Crown Patents still provide exceptions for Colonization Roads. The Parcel Register/Parcel Abstract, now commonly referred to as the “PIN”, which is short for Property Identification Number, may also show reservations for Colonization Roads.
The “Sinclair Colonization Road”, in the Township of Lake of Bays, District of Muskoka, is an example of a Colonization Road. It is not shown on Block Maps or on surveys. Unfortunately, this does not mean that it does not exist, or that it cannot still pose a problem for purchasers. As a Purchaser’s lawyer, one way that you might discover the Road’s existence is by asking the appropriate questions of the Purchaser, the Seller’s Lawyer and the local municipality. By reviewing the Block Maps and surveys carefully, you may discover irregularities which should be “red flags”. In this case, the Sinclair Colonization Road continued through the middle of this property to the Crown land to the north, and it is still in existence as a form of road today. It is used by four-wheelers, snowmobilers and others. Needless to say, the purchaser that retained me to fix this problem was not happy with this situation.
One potential benefit of a Colonization Road that is still in use today, is that it may create a natural severance, similar to an Unopened Original Crown Road Allowance. A municipality has no real argument against the severance, if it takes the position that a Colonization Road continues to exist. In order to create the natural severance however, a reference plan may be required to show the Colonization Road. The cost can be prohibitive, so it can be the worst of both worlds: your client’s property may be subject to rights of use by others, but your client may not be able to afford the severance. There may also be liability issues for your client due to the use of the Colonization Road by others. Colonization Roads are a type of Trespass/Forced Road.
Diversion Road/Road in Lieu Under The Municipal Act
Whether a trespass or forced road is a “road in lieu” or “diversion road” under Section 66 of the Municipal Act is a separate question. The Municipal Act states that if a municipal road is placed on private property in place of an Original Unopened Crown Road Allowance, the owner of the private property who lost property for the Diversion Road or Road In Lieu, may be entitled to be transferred, at no cost, a portion of an adjoining Original Unopened Crown Road Allowance. The tests and issues involved with this can be fairly complex, however, the results can be beneficial.
There are many situations in which owners are not aware that they may have a right to obtain land at the expense of the municipality. Unfortunately, if the municipality does not co-operate, you may require a court order to force the municipality to transfer the land to your client. This situation occurs more frequently than you might expect in both cottage country and on farms in rural Ontario.
MUNICIPAL ROAD PROCEDURES
Opening/Establishing/Assuming/Original Crown Road Allowances
In most cases when Original Crown Road Allowances were opened prior to January 1, 2003, no by-law had been passed to establish them. Since January 1, 2003 when the Municipal Act came into force, Original Crown Road Allowances can only become municipal roads through a by-law establishing the road as a municipal highway. Contrary to popular belief, there is no requirement under the Municipal Act for municipalities to register these by-laws on title to establish a road.
Prior to January 1, 2003, Original Crown Road Allowances could have been assumed through the expenditure of public funds, the completion of “statute labour”, or passage of a by-law. Numerous cases address what constitutes sufficient statute labour for a road to qualify as a municipal road under the Municipal Act. The Municipal Act uses the words “establish” and “assume” in different ways, but does not define them. For the purpose of this paper, “establish”, “assume”, and “open” mean the same thing—that a road becomes a municipal highway constructed and maintained for the public to legislated standards—but these standards can vary considerably. Dedication is different than assumption/establishment. Dedication refers to ownership of the fee in the road. This occurs primarily when roads are laid out on an old registered plan of subdivision or on an M-Plan, by deed from a private party, or by being laid out as an Original Crown Road Allowance.
If you require confirmation as to whether a specific Original Crown Road Allowance has been opened, established or assumed, you may wish to contact the local municipality. Municipalities will usually respond to written requests, but may charge a fee for their response. If you request and pay for a Building and Zoning compliance response, the municipality may include information about access as well. My personal experience is that you can obtain additional useful information by calling the Municipality. Most cottage country municipal offices are small, friendly and personable. In addition, reviewing Provincial maps of the area, Google Maps, or County Interactive mapping can assist you in determining whether an Original Crown Road Allowance is now an open road.
Road Access Agreements
The Municipal Act allows municipalities to enter into agreements with individuals for the use of Original Unopened Crown Road Allowances for specific periods of time, or indefinitely. As a result, some municipalities will enter into Road Access Agreements with private parties to allow them to use an Original Unopened Crown Road Allowance to access their property. These agreements may be registered on title. Road Access Agreements may not allow any upgrading to the road, or may allow specific upgrading. They do not generally require upgrading to municipal standards, due to the prohibitive cost. Road Access Agreements usually state that the municipality is not establishing/assuming/opening the road, and that it is therefore technically closed to the general public. This can create some problems, because it may be difficult to stop the general public from using the road, unless it is gated. Signs are often required to be posted stating that the road is for private use only.
Property accessed through a Road Access Agreement over an Unopened Original Crown Road Allowance, usually also has an additional form of legal access to the property, but its use may be impractical due to rock outcroppings or swamps. You should ensure where ever possible that a Road Access Agreement is permanent. If it is not permanent, ensure that the purchasers are aware of the limitations, and the fact that they may have to construct their own access road at their cost in the future.
Seasonally Maintained Municipal Roads
When searching title for a cottage purchase, you should make the appropriate inquiries to confirm whether there is municipal road access that is traveled, graded and plowed on a year-round basis. Be aware that even if there is, the municipality may decide in the future to discontinue year-round maintenance of the road, and may enact a by-law to turn it into a seasonal road. This may significantly change your client’s ability to access the property, but there may or may not be anything that your client can do about it, other than make a deputation to the local Municipal Council. You may wish to have your client sign an acknowledgement concerning this issue.
POSSESSORY CLAIMS ON UNOPENED ORIGINAL CROWN ROAD ALLOWANCES
Sections 67 and 68 of the Municipal Act deal with possible possessory claims to Original Unopened Crown Road Allowances, which are fairly complex and will not be dealt with in detail in this paper. If you run across issues of possible possession of an Unopened Road Allowance when purchasing a property, I suggest you examine the issue in great detail and speak with an expert in this field.
These possessory claims are not claims for adverse possession in the usual sense. They are claims made against a municipal road and the law is clearly established that adverse possession cannot be obtained against a municipal road, subject to an exception where you are able to document possessory use for over 100 years dating back prior to 1912. The Municipal Act states that you may, however, have possession of the road against all parties, including the municipality, if the road has been fenced to the exclusion of the municipality and used continuously by your client. The Municipal Act does not confer any rights of ownership to the party in possession.
Registered Right-of-Way/Easement for Access Over Private Land
A registered right-of-way/easement for access over private lands is generally straightforward. To be valid under the Planning Act it must have either predated the Planning Act or have a Consent from the local Committee of Adjustment if located over part of a property. It is critical to ensure that your client’s PIN reflects a registered “Together With” (T/W) on their Dominant lands, and that the Servient lands reflect a corresponding “Subject To” (S/T) in favour of your client’s lands specifically, not just a “Subject To” (S/T) in favour of other parties that also use the right-of-way.
If your client’s PIN is T/W the registered right-of-way but the Servient PIN is S/T other parties’ rights only, then for all practical purposes your client should have access. They do not have fully registered protected access however. Your clients may be satisfied if their PIN is only S/T other rights-of-way or easements. If your clients are satisfied with this type of access, you should ensure that you are protected through proper signed acknowledgements from your clients, in case they are prohibited from using the access road in the future.
If the property your clients wish to purchase does not include within the legal description, a registered T/W, even if it was intended that the property contained one, you cannot simply create a T/W by adding it to your Transfer, unless the servient PIN (which is the roadway PIN) is S/T your clients’ deeded right-of-way. If the servient PIN is S/T your client’s deeded right-of-way, an Application General can be prepared and submitted to the Registry Office to add the T/W to your clients’ dominant PIN. If the reverse is true however, you cannot fix the error through an Application General.
If an error occurred during Land Titles Conversion and the Servient Lands should have been S/T a registered right-of-way/easement, you may also be able to fix the problem through an Application General to the Registry Office. In the alternative, you may require a grant of a registered right-of-way from the Servient owner, which may or may not require Committee of Adjustment approval. If it was not an error, but your client may have a valid claim to a right-of-way, you could also proceed by way of a First Application to Land Titles or obtain a Court Order to attempt to obtain the deeded right-of-way.
Actual Location vs. Registered Location of Registered Right-of- Way/Easement
In many cases, surveys do not show the actual location of a registered right-of-way/easement. An old survey or reference plan setting out the area of the registered right-of-way/easement may exist, but that does not mean that the access road was built on the registered right-of-way/easement. In many cases, for geographic reasons, access roads were not built on rights-of-way/easements. Without a new survey, you cannot confirm to your client whether the access road is located on the registered right-of-way/easement, and you should ensure that they acknowledge this fact in writing. You should review the location of the actual right-of-way/easement with your client on surveys and Block Maps, since your client is usually the best person to know whether the actual road is located on the registered right-of-way/easement. You can then determine whether any further requisitions are required or whether special Title Insurance endorsements are necessary.
Unregistered Rights-of-Way/Easements Over Private Land
If a right-of-way/easement is not registered, there may still be rights that have been acquired by prior registered owners that can be provided to your client through a prescriptive easement or otherwise, that may provide them some assurances of access. In some cases, the best that you can do is obtain a Statutory Declaration from the seller stating that they have had unimpeded access to the property without incident since their purchase. Additional details of past use can also be included in this Statutory Declaration.
There is a cottage access road in the vicinity of my cottage that has this type of access. It is a private road and is posted as a private road, and is located fully on private property. The fee, (which means ownership) in the access road, is still registered in the name of one of the original developers of this area from over 100 years ago, but all parties acknowledge that it is now a “cottage access road” to be used by all cottages in the area. It is not maintained on a year-round basis, and any maintenance required in the summer is shared by the owners on an informal basis. Legally, users could be denied access at any time, but practically, it is in no one’s interest to do so. There would also be claims available under the Road Access Act, RSO 1990, c. R.34, if owners were barred from using this road to access their properties, since there is no other road access to their property. This specific access road is registered in Land Titles Absolute and always has been, so a prescriptive easement has never been possible.
The key when acquiring properties with this type of access is to ensure that your client knows what they are getting. Your client will not likely be deterred from buying the cottage, since you will likely uncover this issue long after they have fallen in love with the property. In some cases, these private roads are managed by road associations, and in others, they are managed more informally. You should make inquiries about these issues and the costs involved from the seller wherever possible, and have your client acknowledge the type of access that they are obtaining.
If land was in the Registry System for more than 20 years, and there was an established unregistered right-of-way/easement over it, a Prescriptive Easement could have been previously obtained, even though the land has subsequently been converted to Land Titles. A Prescriptive Easement does not terminate if the claim is being made by the party that owned the Dominant Tenement when the Servient Tenement was automated and converted to Land Titles Conversion Qualified. As such, claims for Prescriptive Easements may still be valid, however, they would have to be asserted by the Dominant Tenement. If denied by the Servient Tenement, a Land Titles Application or a Court Order might be required to allow use of the easement. No Prescriptive Easement is possible if the land has always been part of the Land Titles Absolute system.
ROAD ACCESS ACT
Ontario’s Road Access Act, RSO 1990, c. R.34 (Road Access Act) was originally passed in 1978 to prevent the arbitrary closing of private or “access” roads, and to resolve disputes that occur when the property of one neighbour is landlocked, and the only vehicle access to it is over a road located on private property owned by an adjacent landowner. The Road Access Act does not create any rights, meaning the person with access over the road has no right to widen it or alter it in any way, and the person who owns the road has no corresponding obligation to maintain it.
The Road Access Act defines “access road” as a road on private land that serves as the only motor vehicle access route to one or more parcels of land.
The Road Access Act provides that the owner of the “access road” generally cannot close it without a court order. The Road Access Act does allow the owner to close the road without a court order if there is “alternate road access.”
The Act states that no one shall place or maintain a barrier or other obstacle across an access road that prevents access to one or more parcels of land, except when:
(a) a judge has granted an application for a court order to close the road;
(b) the closure is made in accordance with an agreement in writing with the owners of the affected land;
(c) the closure is of a temporary nature for the purposes of repair or maintenance of the road; or
(d) the closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing the acquisition of “prescriptive rights”.
If a road across private lands providing motor vehicle access to other lands is determined to be an “access road”, its use cannot be restricted to specific individuals or for particular purposes. While such a road may be closed if there is alternate viable access, a decision with respect to road closure should only be made after consideration of who has a legal right to use the road and a balancing of their interests with those of neighbouring landowners.
ACCESS OVER CROWN LAND
In some cases, cottage access roads are located on Crown Land, which is within the jurisdiction of the Ministry of Natural Resources. Historically, all land in Ontario that was sold into private ownership first had to be patented (legally created) by the Crown, hence the term “Crown Patent”. Most Crown Land remains unpatented today, meaning that no Crown Patent was ever issued because no portion of the land was ever sold into private ownership. In many situations, you should search back to the Crown Patent for cottage country purchases, to ensure that the land was properly Patented and to see what, if any, Crown Reservations may still apply to the property.
Access Roads located on Crown Land often originated as logging or mining roads. Some of these roads have been subsequently taken over by municipalities and are maintained by municipalities, but are still on Crown Land, and therefore not owned by the municipality. For all intents and purposes, these are municipal roads. You must satisfy yourself as to what type of maintenance level these roads are maintained to, and whether they are year-round roads. In some situations, these roads are not maintained by municipalities, but are instead maintained either by the Crown or by private parties.
You should make inquiries of the sellers, the local Ministry of Natural Resources office, and the local municipality, to ascertain what the situation is and whether any approvals are required to protect your client. In most cases, you will not receive any written assurances from the Ministry of Natural Resources, but you may receive some form of verbal assurance that the status quo will remain. The general approach of the Ministry of Natural Resources has been that it is not in the best interests of either party to restrict access to cottages crossing Crown Land, so the likelihood of an access road being closed is low. If an access road is maintained by the Crown, or has been maintained by logging or mining companies that no longer use the road, that could impact the maintenance level of the road and your client’s ability to use it in the future.
In addition, there is some statutory protection for purchasers whose access crosses Crown Land, in Section 49 of the Public Lands Act. This section states that “Any person may exercise a public right-of-passage on a road other than a private forest road.” The definition of a private forest road in the Public Lands Act would exclude most cottage access roads over Crown Land, so the statutory protection would extend to most cottage owners. It is still difficult to make any definitive assurances to your client about the intended use of these types of roads, but you should have your clients sign appropriate acknowledgements so they cannot claim that you failed to warn them of the potential pitfalls. In rare instances, you may be able to obtain written approval from the Ministry of Natural Resources to install a new road over Crown Land and/or obtain written permission to use a road over Crown Land. This can take some time and effort to accomplish, so it may not be feasible for a standard cottage purchase.
I have outlined some of the types of road and access issues that you may encounter while acting for purchasers of rural properties or cottages. You will not encounter these types of issues on every purchase, but if you engage in many cottage transactions, you will undoubtedly experience them at some point.