Cottage Properties: Who Has the Right of Way?

With signs that the province is gradually opening and cottage season upon us, it seems an appropriate time to look at a recent decision in the Ontario courts concerning the possible restrictions on the usage of a right-of-way that provides access to a body of water to the owners of non-waterfront cottage property. The case of Fisher v. Saade looks specifically at whether a right-of-way could be restricted from commercial use.

Easements and Rights-of-Way

Before looking at the case, it’s important to understand what a “Right-of-Way” (ROW) is in a real estate context. A right-of-way is a type of easement in which the owner of one piece of land provides the right to another to pass over their land to reach either another property or (as is common in cottage cases) a body of water. For those wondering what an easement is, it’s essentially the legal right for one property owner to enter another’s without permission.

Easements can be created in one of four ways in Ontario:

  1. By an express grant from the owner of the property that is to be entered,
  2. By “prescription” (perhaps better understood as “squatter’s rights”),
  3. By implication (such as with shared walls for semi-detached houses or townhomes), and
  4. By statute (usually for government or municipal purposes).

In the Fisher case, the ROW easement existed as a result of the first example. An express grant was registered on the property by the person who sold both the waterfront property and the adjacent “landlocked” property to the two parties to the legal dispute. The ROW in this case was a typical example that provided the landlocked property owners with access to the body of water by allowing them access to the waterfront property.

Reasonable Use

There was no dispute that the ROW existed and provided pedestrian access to the beach. The contentious matter was who could avail themselves of this access. The owner of the landlocked property undoubtedly had the right to access the property due to the ROW. However, the owner often rented his cottage to various tenants for short-term stays. Were these tenants permitted to also use the ROW?

The waterfront property owners contended that commercializing the ROW was not part of the original intention of the easement as granted by the property owner who sold both properties to the respective parties. An additional dispute surrounded the use of the easement property itself. The landlocked property owner had not only authorized his paying tenants to use the ROW to get to the beach, but he had also built a ramp and erected a floating dock on the shoreline, for use by him or his tenants once they got to the shore. He also supplemented the dock with furniture and a security camera.

The Court’s decision might be said to be a mixed one for both parties. On the one hand, the Court disagreed that the landlocked property owner authorizing his paying tenants to use it was outside the scope of the wording of the ROW or its intended use. The Court looked at both the language of the ROW and how the land in the ROW had been used and found that there was no restriction against commercial use in either the language of the ROW or in the way the ROW had previously been used before the current property owners obtained the land.

The Court pointed out that it is quite customary for cottage property owners to subsidize their property taxes or maintenance costs by renting out their cottages to paying guests (and in fact, the Court pointed out that the waterfront property owners had often done so with their own property). As such, they deemed that providing the ROW to paying tenants renting the cottage property was a “reasonable use” of the ROW.

The Court further indicated that it would be unreasonable for the ROW to now be limited to use by the actual owner of the property or his non-paying guests. The unreasonableness would likely be exacerbated given the extra steps that would presumably be required in determining on the spot whether a guest using the ROW was a paying or non-paying tenant of the property in order to enforce such a restriction.

Unreasonable Expansion of ROW Easements

On the other hand, the Court did agree with the waterfront property owners that the landlocked owner was not entitled to erect a dock or leave beach patio chairs and tables at the area where the ROW met the shoreline. The Court noted that the “unilateral installation of the ramp and dock by Mr. Saade on the Fishers’ land, appears to have followed a complaint from an Airbnb tenant that they had no waterfront area to sit and enjoy the beach area.”

The Court determined that what Mr. Saade had effectively done was to use the ROW to create his own waterfront piece of property that he and his tenants could enjoy, which was an unreasonable expansion of the ROW. The language of the ROW didn’t provide him with a de facto piece of waterfront property, but simply provides access to the water and nothing more. There was nothing in the language (or prior historical use) of the ROW to suggest that he could unilaterally expand the right of access to a piece of property so that he or his tenants could enjoy it as though it was their own waterfront property. The Court ordered that the dock, ramp, furniture and other items be removed.

Right-of-way and easement cases in real estate law can be very fact-specific. Had the language to the ROW specifically excluded commercial usage, the case could well have been decided differently. There are also questions of ancillary rights and implied easements that could have come into play had the landlocked owner been able to prove that the ramp he constructed was truly necessary for the safe use of the ROW.

Contact Prudent Law in Mississauga for Property Easement Matters

Given that each cottage property or ROW can have its own unique characteristics, it is highly recommended that those who have an easement issue seek legal advice to determine their specific rights and/or obligations.

The lawyers at Prudent Law in Mississauga are trusted advocates with respect to real estate transactions and real estate litigation. We provide practical advice and passionate representation in both residential and commercial real estate deals. If you are contemplating the sale or acquisition of a piece of real property and you’d like to discuss it with one of our experienced real estate lawyers, please call us at 905-361-9789 or contact us online.

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