Written by Nathalie Tinti, Lawyer/Partner, Barriston LLP
In many parts of Ontario, and especially in Muskoka and Parry Sound, Crown surveyors in the latter half of the 19th century were instructed to lay out a sixty-six foot strip of road along the banks of lakes and rivers. The purpose of these roads was commercial. During the latter half of the 1880s and the first half of the 1900s, these roads were used continuously for logging and transportation of various goods. As there is no longer any necessity for this type of transportation of goods, these roads have little commercial purpose, however, they have come to the forefront of issues relating to real estate transactions and ownership.
The sixty-six foot road allowance, regardless of how it was created, lays between the cottage property and the river or lake. This is extremely important because if this road allowance exists and has not been purchased, you do not own to the water’s edge of your very expensive cottage property. There will be a “gap” between your owned land and the lake, which is a road. This road, like any other, may be used freely by the public as it forms part of the municipal road system. Whether the road was laid out, reserved
or excepted by the Crown, all roads, as a result of the governing municipal legislation of 1913 are now owned by the municipality in which they are situated.
Decades ago no one really considered the importance of this strip of land. It was essentially ignored by adjacent property owners and these property owners simply used the shore road allowance as if it was their property. People built their docks, boathouses and sometimes even their cottages on the shore road allowance.
Shore road allowances were essentially ignored until the 1970s. With the popularity of snowmobile and ATV use, organized groups began learning of the presence of these shore road allowances. A shore road is a road like any other and, although the highway belongs to the municipality, the paramount public right of passage is a completely separate right which belongs to the general public, not to the municipality.
Upon learning of the presence of these shore roads, the public began to use them as ATV and snowmobile trails, very much to the dismay of the adjacent land owners. Imagine waking up in the morning, pouring yourself a cup of coffee, sitting on your porch, overlooking the lake thinking to yourself “this is exactly why I spent a million on this cottage, it is gorgeous and tranquil and I think I may get up and get the paper”…and then bam! A group of ATV enthusiasts screech by nearly missing you without a care in the world. Guess who the next call is going to be to? If not your lawyer, then your local municipality.
As cottage ownership has become more and more popular during the last 3 decades, municipalities were receiving increased pressure to deal with the problems that had been created by the existence of these shore road allowances. The roads were no longer necessary for commercial purposes and were a true nuisance to most cottage owners. Pressure began to mount on local municipalities and the government to stop up, close and sell the shore roads to adjacent land owners who desperately wanted to secure their privacy.
It also did not take municipalities long to discover that these shore roads, while of no real practical value to the municipality, are a great source of revenue. As long as the shore road is not located in an area of noted retention, municipalities are generally quite happy to stop up and close the road and sell it to the adjacent land owner. Rates relating to the purchase of these lands have doubled in the last few years and it is likely that, given their practical value to the adjacent land owners, the square footage price for this land is going nowhere but up. Therefore, if you have the ability to purchase a shore road, you should do so sooner rather than later.
A simple title search can reveal whether your cottage property has an OSRA lying between your land and the edge of the water. Once you have discovered that the OSRA exists, search your local municipality’s website and determine their process for stopping up and closing the road and ultimately transferring this land to you. It will improve your property value significantly and is the cheapest land per square foot you will ever purchase in cottage country (at least for the time being).
Good luck and happy cottaging!
Nathalie Tinti 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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