Bourne, Jenkins & Mulligan

August 15, 2003
Road access

by Amy MacMillan

Successful development of real estate, whether for residential, industrial, commercial or recreational purposes, depends on reliable access to the land. In most urban settings and where land abuts a highway, road access seems to be obvious. However, even the apparently simple may, in fact, be complicated. Highway access permits, driveway permits, and unopened road allowances are issues that buyers may overlook, which can create grief later on. For example, the Ontario Court of Appeal recently released a decision dealing with the access rights of owners who thought a public road reached their driveway. It turns out that the road was closed in 1956, and sold in 1958. When the neighbour who now owns the closed road blocked it, the owners had to seek other access.

One avenue of relief in Ontario is the Road Access Act, a law passed in 1978, which protects the rights of property owners who enjoy undocumented access to their property, whether over private property or public property. Basically, the law requires a judge to approve any action which would remove access over an access road. It does not create a system for creating new access roads, or any of the rights of maintenance, improvement or other attributes associated with public roads, or easements.

For land that does not abut a public road, an easement, which is the legal term for a right of way, is the next best thing. Easements may be written or verbal, and can sometimes be established through custom, or usage. However, if they are not in writing, they are difficult to enforce, and misunderstandings are likely. A proper Easement Agreement, prepared by a lawyer, is recommended. A homemade document is a poor second best.

Most organized municipalities (cities, towns, townships) have zoning by-laws, which, among other things, require that property have specified frontage on a public or publicly maintained road in order to get a building permit. Without a building permit, any new construction or renovation is illegal. Access over an easement, or a private road, does not usually satisfy the zoning by-law. Costly and time-consuming remedies (minor variances, by-law amendments, property exchanges, opening of roads) are often necessary, if they are available. This impacts greatly on the value of the property.

Especially when buying rural or cottage property, attention to access is vital, and should involve your lawyer. Often, a surveyor is also needed to locate a road as it exists on a plan or in an Agreement. Many cottage properties depend on customary access, or easements. Understanding your rights and obligations can save lots of grief later. Although title insurance may help straighten out a problem later, or compensate for monetary losses, nothing will pay you for the time and disappointment of not fully enjoying the use of your property.

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