For many, the dynamic nature of Georgian Bay is not immediately obvious. It undergoes an almost cyclical pattern where, over a decade or so, the water levels gradually rise and then fall. The result is a shoreline that may be markedly different over the span of even just a few years. The following article aims to highlight some of the particularities that come along with owning waterfront property in cottage country.
Riparian Rights – The Right to Water Access
Water can influence property rights in more ways than one. Firstly, it is worth noting that there are certain water rights ancillary to the ownership of waterfront property. These are known as riparian rights.
These rights are not rooted in ownership given that the Province of Ontario owns most beds of lakes and rivers. Rather, they are a right of access; the owner of a property that abuts water has the right of access to and from the water that adjoins their lands. Interference with an owner’s riparian rights by another may be actionable unless such interference is permitted by statute.
Property Boundaries and the Shoreline
Water can also have an impact on property boundaries as the waterline rises or recedes. Like many legal questions, the treatment of boundaries for waterfront property is complex and fact specific.
The term “accretion” is used to describe an increase of land that borders a body of water through the silting up of sand/dirt or the retreat of the waterline. To be valid, the process must be gradual and cannot be the result of immediate human activity. Generally, where an individual owns to the water’s edge, they will be entitled to any land newly created through accretion. Where two or more adjoining property owners are entitled to the newly created land, each owner is entitled to a share proportionate to their original frontage. That said, as mentioned above, the determination of accretion rights is contextual. There may be requirements to formalizing these rights, such as any imposed by the Ministry of Natural Resources.
Conversely, the term “erosion” is used to describe the loss of land by the encroachment of the water onto one’s property. Ownership of the land, now submerged under water and forming part of the lake/riverbed, returns to the province.
Owning Property in Cottage Country
Ultimately, the relationship between water and property is a double-edged sword. While a waterfront property owner may be entitled to benefits such as riparian rights and accretion, they are equally subject to the risk of erosion. While this article is by no means a comprehensive deep dive it is important to keep in mind that, not unlike Georgian Bay’s landscape, the property rights of owners in cottage country can be dynamic and shift over time.
This article is intended to be a general introductory guide to Riparian Rights and Waterfront Property Boundaries only. It does not constitute legal or professional advice or an opinion by HGR Graham Partners LLP in any way. This article should not be construed as legal advice and should not be relied on as such.