By Greg Cholkan, Lawyer, Barriston LLP
If you’re purchasing a pretty in Muskoka , Haliburton, or Parry Sound, you should consider retaining a local lawyer. Real estate lawyers who practice in major urban centres may not be as familiar with the issues peculiar to rural properties.
Title searches performed by lawyers in rural areas often go all the way back to Crown Patent. A
Crown Patent is a legal document that is used to transfer Crown land (land held by the federal or provincial government in the name of the monarch) to a private owner. It shows what rights were given to a buyer at the time is was issued. In Muskoka, for example, Crown Patents were issued as far back as the nineteenth century!
These original grants of land contain conditions and reservations. For example, some state that land may not be used for agricultural purposes. Some of these reservations no longer apply and can be removed from title. Others remain valid and may affect your use of a property.
In one case, The Tadenac Club b. Hebner and Spitzer, the Crown Patent reserved the “right of access to the shores of all rivers, streams and lakes for all vessels, boats and persons, together with the right to use so much of the banks thereof; not exceeding one chain in depth (a chain measures 66 feet) from the water’s edge, as may be necessary for fishery purposes.” The property, which surrounded the waters of Tadenac Bay, Georgian Bay was subsequently acquired by a fishing and hunting club.
The club was then given by the government an exclusive right to fish in those waters. But this didn’t stop others from trying! Eventually, the club took these poachers to court. As a defence, these furtive fishermen argued that the reservation in the Crown Patent gave them, and the public in general, a right to fish the waters of Tadenac Bay. The Court disagreed with their argument and stated:
The reservation is in favour of the Crown, and, therefore, it is NOT a right of the general public. Moreover, it is “a reservation to the Crown of the right to use the banks to a certain depth for ‘fishery purposes’ [this is not] an express stipulation that the Crown …continue(s) to enjoy fishing rights in the waters.”
There are a number of other issues that come up with rural and waterfront properties. Your lawyer should make you aware of your rights as a landowner or potential landowner prior to the completion of your purchase. If the price of the property is steep enough, you should even consider retaining a lawyer to perform a title search before signing an agreement of purchase and sale. Otherwise, you might find me fishing on your beach!
Nathalie Tinti, Partner
Greg Cholkan, Associate
Trevor George, Counsel
Offices in Barrie, Bracebridge, Collingwood, Huntsville, Port Carling