Many cottage owners in Muskoka access their cottages via a right of way. These private cottage roads often meander along long stretches of shoreline, giving access to multiple cottages as they go. They are a series of “granted to” and “in favor of” easements that the property owners allow to benefit each other. Sometimes when a large parcel of land has been severed the original land owner retains the entire road or right of way and as each lot is sold grants an easement over the required sections.
This all sounds very simple, but there is an “however” coming; as you may have guessed.
Up until the 1990s, land was registered in one of two ways: Land Registry or Land Titles. In the late 1990s all Ontario land registration was moved into the Land Titles system and the system was automated so that it can be accessed electronically. This makes things much easier to manage, especially for lawyers at the time of a sale, as the new deeds and any mortgages are electronically registered from their office. They no longer have to line up on closing day to do that last minute search and then register your documents.
However, if the easement granting your cottage a right of way was registered a long time ago in the old Land Registry system, it would have needed to be renewed every 40 years. If at the time of transfer to land titles in the late 1990s it had expired, it DID NOT TRANSFER and you may no longer have a right of way granting legal access to your property.
What to do to ensure that your access is current and secure.
If you purchased your property in the last 10-20 years, your lawyer will have registered it in Land Titles and hopefully will have made sure the easement was there and you have access. You can verify this by reading the documents that your lawyer gave you at your closing. If you want to check your title you can ask your lawyer or do a title search online at http://www.teranet.ca/. When you retrieve your parcel register from the search you will see what they call the “thumbnail” which gives the legal description of your property. What you do not want to see is the phrase “except the easement therein” as that will mean that the easement was removed because it had expired.
If you purchased prior to the transfer to Land Titles you will need to check your title to see if you easement transferred. As above, your can get a copy of your title from your lawyer or at http://www.teranet.ca/ and you will be looking to see if the phrase “except the easement therein” is in the thumbnail description.
If you discover that you no longer have legal access over the original easement to your property there are some ways to resolve it, these include:
1. By agreement: If you and the owner(s) of the easement are on good terms, you can agree to register it as a new easement. Remember you all have to agree and also agree on the cost to achieve it, which could include a new survey. This solution often fails as usually one or more of the parties sees an opportunity to gain at someone else’s expense.
2. By Legislation: Section 113 (2) of the Registry Act (as amended) states as follows, Notice of Claim – A person having a claim…may register a notice of claim with respect to the land affected by the claim,
(a) At any time after the notice period for the claim [within 40 years from its original registration]; or
(b) At any time after the notice period but before the registration of a conflicting claim of a purchaser in good faith for valuable consideration of the land. So you can register your notice of claim any time after the 40 years has expired provided the owner of the land that grated the easement has not already registered a document that conflicts with your claim. You may think that once it has been transferred into Land Titles that this legislation will not cover you but case law Kendrick vs Martin , upholds the ability to register a claim even after the transfer, providing the owner has not filed prior to you.
If you discover you have an issue you may want to contact your title insurance company if you have one, as they may cover the cost of getting this issue resolved.
Please do not hesitate to contact us if you have any questions and we will do our best to assist you. Remember that if you access your cottage via a right of way we will need to confirm that it is properly registered so that we can properly represent you in your sale.