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In the big city, or even in a small village, it's a pretty safe bet that you can get right to your driveway on a public road, maintained year round. It would be pretty rare not to have all the usual services, water, sewer, snow removal, garbage pickup and so forth.

Life is different out in the country. Some roads have not been assumed by a local municipality, or ever if they have been, do not receive all services. Before you buy, it is essential to be sure what you're getting, and also how you're going to get to it.

There are thousands of miles of private roads in rural Ontario, and if you are buying a property on one, you had better be sure you have a legal right of access.

PRIVATE ROADS

"Here lies the body of Sammy Jay,
Who died defending his right of way.
He was right as he went along,
But he's just as dead as if he was wrong."


A private road is a strip of land that, by definition, is owned by someone. Cottagers may use it to get to their property, but the conflict arises because someone else still owns the bed of it. How do you get a right to use a road that someone else owns?

Well, there are three ways, but the best is the first.


1. A DEEDED RIGHT-OF-WAY

Leading all the Way... to a municipally maintained road.

If you must buy on a private road, this is your best assurance of access. Your offer should specify that the property has "a deeded right-of-way" to a municipally maintained road.

Usually, a grant of right-of-way is stated on a deed just that way. It gives you a right to pass along the road, which, remember is owned by someone else. It doesn't give you the right to park on or even beside the road - just to go over.

In some special cases, such as when you want to put a hydro line over a road, or a water line under one, you may need to be sure that you have a right-of-way "in, over and above" a private road.

To be put in your deed, a right-of-way has to have been surveyed. A right-of-way must always be for the benefit of a specific property. It has to be in your deed, not just your neighbours!

Although many older rights-of-way are much narrower, a right-of-way should be 66 feet wide, so that it will meet the requirements that most municipalities need if they ever wish to assume it as a public municipal road.

 
 

When a roadway has been openly and continuously used for the benefit of a specific property without dispute for 20 years, you may be able to show that a right-of-way has been established even if it was never deeded.

This is a much less safe way to prove access. Unless you have been camping on the road for the last 20 years, you are relying on others for proof of the use. If the owner of the land has gated or chained the roadway for even one day a year, it may be enough to defeat your claim.

The use that must be shown must be "Nec vi, nec clam, nec precario". The old Latin legal maxim says, "Without force, without secrecy, without permission". That's what you would have to show and you would have to show it for 20 years -- not an easy task!

3. THE "ROAD ACCESS ACT"

Even where there isn't a right-of-way by deeded or by proven usage, you have some protection from being suddenly barred from a road leading to your cottage.

This may sound good, but it isn't as good as it sounds!

This Act is designed to assure that the person who owns the bed of a road does not just set up a gate to stop those who use it. At the least, he has to apply to a Judge first. But does the Act give the right to use the road you need?

Well, Judges have differed. Maybe it does give you a right of access, or maybe, as some judges have felt, it is just a way to help assure that no one finds the cottage blocked when they show up for the long weekend. That doesn't mean the road can't be cut off, only that whoever wants to cut it off must go to a Judge and persuade him or her first.

ROAD ASSOCIATIONS:

For many private roads, there are Cottagers' or Road Associations. Annual fees are typically $100-$400.00 per year, and usually the service and security which comes from being part of a group is well worth it. Before buying, find out if you have this protection.

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