Shore Road Allowances and Your Waterfront Cottage Lawyer
Ownership of the shore road allowance is an important aspect of purchasing or selling a Waterfront Cottage Lawyer. Particularly when you are purchasing a waterfront property, it is critical to ensure whether there is a shore road allowance if you want to have the right to use, enjoy and build on that section of the property. It is critical to perform title and off-title searches in order to determine the presence and ownership of shore road allowances.
A shore road allowance is a public highway that is located along the shore of a navigable waterway. Shore road allowances are 66 feet in width as measured from the high water mark of the river or lake.
There are three types of shore road allowances:
- An open shore allowance – when assumed by the Crown or the municipality, this road allowance is maintained and is a public road. An open share road allowance that has not been assumed may have a road that was create by someone other than the Crown or the municipality, and maintenance of the road can vary. You may see a sign like “Road unassumed, use at your own risk”
- An unopened shore allowance – also owned by the Crown or municipality; however, it has never been opened and assumed for maintenance purposes by the Crown or municipality
- A closed shore allowance – where the road allowance was identified as no longer necessary and was closed. This road closure requires the passing of a by law, and when this happens, the road is no longer a public road. This could be retained by the Crown or the municipality, or it could be sold to the adjoining landowner.
Both open and unopened shore road allowances mean that the Crown or municipality owns to the water’s edge. This means that any property abutting an open or unopened shore road allowance may appear to extend to the waterfront, but in actuality, these lands are not privately owned and may not be included in your cottage purchase. All road allowances are owned by the local municipality, and you may close and then purchase the road allowance from the municipality, but there is a process and cost to this.
When a shore road allowance is open, it should remain visible, even if it is seldom used. By contrast, an unopened shore road allowance may not be visible – e.g. the land may appear untouched and part of the abutting property. In some instances, an unopened road allowance could be used seasonally, might provide access to other lands, or could be used as a trail or public access to a river or a lake.
Whether open or unopened, without permission from the adjoining landowner through an easement or right of access, the public does not have the right to access the water by crossing their land. This implicates buyers, who may not be aware of their existence on their property and how it may impact their legal rights & obligations, or the value of their property.
Determining Ownership of Road Allowances
The first step in determining ownership of the shore road allowance is to review the documentation for the property ownership, including a surveyor’s real property report, a reference plan or the deed/transfer. Ideally, your realtor is helping you do this. If the shore road allowance is not owned, a buyer could make inquiries regarding the potential to purchase the lands. Shore road allowances are only sold to the owner of the property directly abutting the shore road allowance; purchasing this land can take up to a year to complete the transfer of ownership.
If the share road allowance is not owned, many issues may arise, including:
- Improvements along the water’s edge may be on lands not owned by the buyer or seller – boathouses, docks, etc.
- Even though the original structure may have been located on the owner’s property, additions or renovations to the structure could result in a portion of the structure constructed on the shore road allowance.
- A property owner could be required to purchase the land or pay an annual rental when a structure or an improvement is located on lands not owned.
- The shore road allowance can be used by the public, which could result in others using the beach and snowmobiles and ATV riders using the road as a trail.
Aura LLP has helped many clients purchase their dream waterfront cottages and navigate shore road allowance issues.
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