If you’re eyeing a cottage property, don’t just look for water, look for road access


thestar.com
Bob Aaron
Bob Aaron bob@aaron.ca

Posted On: Friday, April 26, 2019
Next month marks the start of cottage season — a good time for a reminder that buying rural property is much different than buying in the city.

Buyers and agents must consider, among other things, issues like land surveys, shore road allowances, fireplace safety certificates, septic permits, water quality tests and well driller’s certificates.

But the most important issue may well be road access. Buyers should always ask: “How do we get there from here?”

This was the issue in a case that reached the Ontario Court of Appeal three years ago.

The case involved a parcel of land on Lake Manitouwabing, near Parry Sound. Sheila Wise and her late husband owned lakefront property. They divided their property into two lots and gifted one to their daughter and son-in-law— the Lipsons.

The Wises kept the other lot. The lot gifted to the Lipsons connected with a local public road but the lot retained by the Wises did not have registered road access. There was a roadway but the Wises did not create a registered right-of-way over the Lipson lot that was on title.

The Toronto-Dominion Bank held a mortgage on the lot retained by the Wises. After the mortgage went into default, the bank realized that the lot did not have registered access. It brought an application to Superior Court for a declaration that an easement existed over the Lipson property for the benefit of the Wise lot. In law, the bank claimed what is known as an easement of necessity.

The law presumes one was granted when the land that is sold is inaccessible, except by passing over adjoining land retained by the person who sold the land.

The judge who heard the bank’s application in the lower court ruled that the Wise lot enjoyed an easement of necessity.

A three-judge panel at the Court of Appeal disagreed. It ruled that the legal test was not one of practical necessity but one of strict necessity. Although water access was not a practical alternative, the lot was not landlocked because it could be reached by boat. The roadway, therefore, was not strictly necessary.

The bank’s application for land access, based on an easement of necessity, was denied. The court wrote: “The availability of water access means that the test of necessity at the time of the grant is not met.”

This case serves as a reminder to would-be purchasers of recreational property that aside from the value of the building on the land, the most important factor determining the value of a cottage is whether or not there is a registered right-of-way over neighbouring land. Clearly, a cottage lot is more valuable if it can be accessed by road rather than water.

It is also important that the deeded access route corresponds to the actual travelled roadway on the ground. I have seen registered cottage rights-of-way that travel over massive Muskoka granite rocks and were completely impossible to use.

When buying cottage country property, it is important to deal with a real estate agent and lawyer who are familiar with recreational property issues.

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Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.

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