By Nathalie Tinti, Lawyer/Partner, Barriston LLP
Who doesn’t love a boathouse? It increases the living space of your cottage and some boathouses are so beautiful that they are actually like a cottage themselves. These larger boathouses are usually two story and include some sort of living space. But are they legal?
Chances are, if you have a two story boat house it is located on either municipally owned land (likely an original shore road allowance) or land over which the Ministry of Natural Resources (“MNR”) has jurisdiction (on the water). Generally, this does not become an issue until you wish to remodel or rebuild your boathouse, or sell your property. Most people believe that this remodel or rebuild is not an issue because the boathouse is “grandfathered” into compliance as a legal non-conforming structure, regardless of current building and zoning compliance. To some extent, this is true. However, you may find that there are legal obligations to the municipality as well as MNR as the Crown and/or the municipality may have an interest in the land upon which your boathouse sits.
If your boathouse is built on an original shore road allowance (for a discussion on “OSRAs” see previous OSRA article in this magazine or check them out on our webpage at Barriston.com) you may be forced to buy the original shore road allowance. Forced purchase of this land is may not a bad thing. It improves the footprint of your land. Depending on the square footage of shore road allowance being purchased, this addition of land may also allow you to build a larger cottage in the future. Further, compared to the cost of cottage property, this will be the cheapest land you ever purchase in cottage country! The cost per square foot of shore road allowances has not, thankfully, kept up with the ever increasing cost of cottage country property. However, it should be noted that the costs associated with shore road allowance purchases are governed completely by the municipality in which they are located and therefore may change at any time.
If you are lucky enough to have a two story boat house with living quarters that islocated on the water, you may be required to either the lease the land that it sits on from MNR or you may be permitted to purchase it. As of January 1st, 2006, MNR reinstated the requirement that owners of certain boathouses located on Crown Land, including but not limited to, the beds of most waters in Ontario, must entered into a lease agreement with the Crown and pay rent in order for the boathouse to remain. Alternatively, it may be possible to purchase the land on which the boathouse sits from the Crown.
Not all boathouses, however, require purchase or payment of rent. MNR, in its current policy on boathouse ownership and/or rent states that boathouses located on Crown land do not require land use occupational authority or the payment of a fee or rent if the boathouse is a single story boathouse provided it is used strictly for private use or commercial tourism non-revenue producing purposes and is in compliance with the following:
(a) is mutually considered to be a necessary adjunct to the use and enjoyment of the adjoining upland property:
(b) is located directly in front of the owner’s/occupier’s adjoining upland property (or a shoreline road allowance or Crown shoreline reserve abutting the upland property) and do not interfere with a neighbour’s use and enjoyment of their waterfront property;
(c) the boathouse has been approved or exempted by the Canadian Coast Guard under the Navigable Waters Protection Act, if applicable;
(d) is in compliance with applicable permitting requirements; and
(e) specific to docks and boathouses, are used only for the storage and docking of boats and related equipment.
If a boathouse does not meet the above criteria, for example, it has a second story, (regardless of its use), contains living accommodation or is located remote from the owner’s privately owned upland property, then occupational authority and the payment of an annual rent is required.
The lease or the purchase of Crown land can be accomplished fairly easily at a reasonable cost. If purchase is an option, the cost of Crown lake bed land is so reasonable, I highly recommend that you purchase it rather than rent it. One never knows when MNR may change its policy relating to these lands and as anyone knows, long term investment of ownership is always preferable to renting.
We at Barriston wish you all a very happy cottage season!
About Nathalie Tinti
Nathalie is a partner at the law firm of Barriston LLP. She is an experienced lawyer who practices in the areas of real estate, corporate and municipal law. Nathalie provides legal services to numerous municipalities as well as private individuals and corporations in the Muskoka and Parry Sound area.
Graduating from the University of Western Ontario, Faculty of Law in 1997, Nathalie was called to both the New York State Bar and Ontario Bar in 2000. After working in Toronto, Nathalie and her family have moved to Muskoka to enjoy all the benefits of cottage country living while running a thriving law practice.
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