Where the Blacktop Ends

If you have ever travelled to a cottage in Muskoka, your drive probably went something like this...

provincial highway, municipally owned and maintained road, gravel road (unmaintained but municipally owned), unmarked private road (except for homemade pieces of wood with last names faintly painted with an arrow indicating which way to turn for your particular destination cottage), little laneway across neighboring woods until finally! Cottage driveway!  Much like the drive, it is the last few kilometers of the journey that are most interesting from a legal perspective.

When you are in the driver’s seat, scoping out a potential new cottage property for purchase, take care to notice how you get there. If you are lucky, a municipal road will lead to your doorstep, however you will pay a premium for that luxury.  More often than not in wonderful Muskoka, you will have to use a private road to access your property and the right to do so may be in the form of either an easement or right of way.

If registered, an easement or right of way will allow you to cross someone else’s land subject to certain terms and conditions, as contained in the document providing you these rights. You will want to check that the easement or right of way is valid and still in existence; sometimes they are applicable for a certain period of time, or are not assignable to new owners. It is also important to determine whether the easement or right-of-way document provides for any obligations on your part. For example, maintenance or upkeep responsibilities.

Sometimes, properties are accessed through an easement or right of way that is unregistered. An unregistered right to cross to some else’s land is difficult to enforce once access is blocked or otherwise prohibited.

The best course of action to determine your access rights is to engage the services of a lawyer who will review title documents and assess whether the easement or right-of-way is registered on title to your prospective cottage and that the dominant and servient tenements are properly described.

The issue of deeded access has a huge impact on the purchase or selling price of a cottage. Ask your Realtor a lot of questions about access, and if you are unsure, have a lawyer look over the Agreement of Purchase and Sale prior to signing on the dotted line.

Written by: Nathalie Tinti, Partner & Lauren Martin, Associate, BARRISTON LLP