By: Joshua Matson
Owning waterfront land is an aspiration for many of us and waterfront lots are often highly sought after. Issues concerning the rightful use, access and enjoyment of waterfront property continue to impact both new and long-term owners. Understanding your rights as a property owner will enable you to prevent possible disputes and allow you to make the most of your property. In the area of cottage properties, public and private beaches, and deeded accesses, it is important to consult with an experienced real estate lawyer to navigate these complex issues.
Riparian (Water) Rights
Unlike property/land rights, water rights are not typically rights of ownership. Water rights are known as riparian rights. While you may typically own land, and have the corresponding rights associated with ownership, you do not likely own the water to which you have riparian rights. Except in special cases, the Province of Ontario owns land under navigable bodies of water by virtue of the Beds of Navigable Waters Act, R.S.O. 1990, c. B.4. As such, for most waterfront property owners, their land ownership ends at the shoreline. However, such owners have corresponding rights associated with owning waterfront property, known as riparian rights. The exceptions are smaller non-navigable water bodies and water lots.
Riparian rights are not ownership rights but are instead rights of use. Riparian rights permit you to use water for certain purposes. Riparian rights are typically categorized into six categories:
- The right of access to the water;
- The right of drainage;
- The rights relating to the flow of water;
- The right to undiminished quality of water (pollution);
- The right to use the water; and
- The right of accretion – generally, if natural accretion, the land is added to the adjoining upland parcel. If land is created by illegal infilling, the Crown is the de facto owner of the illegally created land.
Permitted Uses by Body of Water
The permitted uses associated with riparian rights depend on the type of water body.
Underground (Percolating Water)
Riparian rights to use underground/percolating water, for residential purposes, are some of the strongest water rights at common law: landowners have the right to withdraw as much underground water as they like, without regard to the effect that this withdrawal might have on neighbouring landowners and without regard to what the landowners intended use of the water. The underlying purpose of this right is to permit landowners access to underground water for residential water use. For commercial, agricultural or industrial uses other laws and regulations may limit these rights.
Navigable Waterways (Rivers)
The difference between rivers and streams can be summarized in a word, navigability.
In Ontario, everyone has the right to travel along every waterway deemed navigable. This right is important as some waterways flow through what would otherwise be private land. Specifically, for landowners whose property contains a waterway that is considered navigable, they should know that the Crown owns the waterway and that the public can use it for transportation or recreation. For the waterway to be considered navigable, the waterway must: (1) be physically capable of being traversed by a boat of some sort (this includes small canoes); (2) be capable of facilitating transportation in relation to a public purpose (commerce, agriculture, recreation, etc.); and (3) run from one point of public access to another, so that trespass on privately-owned land is not needed in order to access the waterway. This means that if you see a person canoeing down a navigable river flowing through your property, that person is not trespassing unless they get out of the river and step onto the land you own.
If a navigable river flows through or abuts your property, you will still have riparian rights to use and enjoy the river and the water for any reasonable non-commercial uses. You are not permitted to use the river water for “unreasonable uses” or alter it in any way. Unreasonable uses would be large scale agricultural, commercial or other uses that would affect the quality or quantity of water available to any downstream landowners. If you are intending on using water for “unreasonable uses”, you may have to obtain a permit or otherwise be granted the right to use the water for that purpose by specific regulatory bodies.
Non-Navigable Waterways (Brooks, Creeks, & Streams)
A non-navigable stream, brook, or creek normally has a small flowrate and depth. These can be used as storm drain-offs or seasonal drains but can also be permanent bodies of water. Any non-navigable waterway is not for public use. As they are non-navigable, by definition, the only access to the body of water would require trespassing over private property to get to the waterway. Non-navigable waterways located on private property can be used for such purposes as the landowner sees fit. These bodies of water are located on private property. Riparian rights in these bodies of water are similar to those of underground/percolating water, as the water can be used for any purpose and in any amounts subject to statutory laws, municipal-by-laws, Ministry of Northern Development, Mines, Natural Resources and Forestry (MNRF) and conservation authorities’ requirements. It is important to note that landowners that divert these waterways or change the course of drainage could be liable for damages to other owners’ properties negatively impacted by the drainage.
A water lot is its own lot either contiguous or entirely separated from dry land, and is usually covered with water, but not necessarily at low tide. They are exceedingly rare and they are not regularly granted by the Crown today. Surprisingly, they can be found with some frequency on Lake Simcoe. Crown agencies have preferred to lease water lot areas rather than sell them. There are significant restrictions, requirements and details that need to be reviewed and understood for water lots.
Lakes (Public vs Private)
Lastly, lakes are very similar to navigable rivers. The lake itself is owned by the Crown and can therefore be used by the public for, commercial, recreation, or travel purposes. The one exception to this is private or manmade lakes or ponds. These are lakes or ponds that are surrounded by privately owned lands. These cannot be accessed by the public without trespassing onto private property and therefore are not capable of being used by the public.
If the landowner owns to the water’s edge (specifically, the low water mark) then the land likely cannot be traversed by the public, this is often called a “private shore”. However, property owners who assume that they own to the water’s edge could be mistaken. The Crown may own what is known as a Shore Road Allowance. Shore Road Allowances are 20 metre (66 foot) wide strips of land between private land and some bodies of water. Shore Road Allowances were put in place in the late 19th century to allow the Crown to transport goods via waterways and for logging. If there is a Shore Road Allowance between your land and the water and Crown retains ownership, you do not own to the water’s edge.
To determine your water rights, you may need to determine the limits of your property and if it abuts the body of water.
Many landowners are unaware that their property boundary does not extend to the water’s edge, especially in cottage country. Simply because a property is marketed as ‘waterfront’ doesn’t necessarily make it so. This is often the case with homes surrounding public beaches, municipally owned property and conservation areas. Additionally, the Crown may own land between your property and the body of water, if land has been created by illegal infilling. It is important to confirm the properties boundary extends to the water’s edge or you may not have riparian rights to the body of water – other than those available to the public. Many purchasers wish to ensure exclusive use of the lot, up to the water’s edge in order to have what is colloquially known as a private shore.
In order to determine your properties limits you will need to examine either the metes and bounds description in your deed, or the Reference Plan/Plan of Subdivision registered on title.
Metes and Bounds
Properties registered in the Land Titles Office must either be described by a metes and bounds property description or a Reference Plan/Plan of Subdivision. A metes and bounds description is a written description of the property that states the bearing of the property limits, the distances, and the directions travelled along property lines and physical barriers to form the limits of the property.
For irregular and waterfront lots, metes and bounds property descriptions can become lengthy and complex. A waterfront metes and bounds property description may describe the property’s edge by making direct reference to the body of water. For example, “THENCE on a course of north 53 degrees 56 minutes east 226 feet more or less to the high-water mark of Georgian Bay; THENCE in a northerly and westerly direction and following the contours of the said high-water mark 72 feet more or less…”. A property description such as this is defined by the high-water mark of the body of water and any accretion or degradation of the shoreline may change the geographical limits of the property.
In the alternative, the property description could lead a length into the body of water without making any reference to the body of water. For example, if the metes and bounds description stated, “north 100 feet to a point”, and travelling 90 feet north you found yourself standing in a body of water, then you may have riparian rights in that body of water. However, if the water receded you may find that the body of water is no longer within your property limits, and you may no longer have riparian rights to that body of water. The land in-between your property limit and the water’s edge could be owned by the Crown. The use and rights, in circumstances such as these, are heavily dependant on the specific facts, deeds, legal description, and municipality.
At common law, the high or low water mark is defined as the average, ordinary [high or low] water mark, irrespective of seasonal variations – the effects of torrential rains, uncommon floods and spring flooding are ignored. If the property description does not state otherwise and simply states “water mark”, the presumption is that waterfront properties are granted ownership to the low-water mark of the body of water.
Reference Plan/Plan of Subdivision
A Reference Plan is a document that a surveyor creates that plots the original metes and bounds description from the deed onto a visual representation of your property limits also sometimes called a survey. The Reference Plan is a binding legal description of the property limits once registered on title and used in a transfer or other land registry/land titles document.
It can be crucial for purchasers, as a condition in the Agreement of Purchase and Sale, to require production or creation of an up-to-date survey or Reference Plan in order to accurately determine the property boundary, the natural barriers, and the water frontage. Older reference plans may not show degradation or accumulation along the shoreline. Reviewing these documents, preferably with a solicitor or surveyor, prior to submitting or firming up on an Agreement of Purchase and Sale is strongly recommended. This better allows the purchaser to make informed decisions and know exactly what they are getting, especially when Simcoe County waterfront lots can be quite expensive purchases.
Other matters that may affect your riparian rights include Statutory amendments, municipal by-laws, Indigenous treaties, and Conservation Authorities’ regulations. To find out more about your existing riparian rights or if you are considering a purchase of waterfront property, please contact us for assistance.
This article is intended for general information purposes only and is not intended to provide legal advice. Readers with concerns about how this affects particular situations or transactions should obtain the independent review and advice of legal counsel.