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Cottage Right-of-Ways: What are your real property rights?

If you own real property, especially a cottage, or you plan to own one, you should know about potential issues with right-of-ways.

Ownership of land is not without limitations. The right to the use of your land may be limited by an easement, such as a right-of-way. Alternatively, access to your land may be by right-of-way over someone else's land. If you think a neighbour might be wrongfully using a right-of-way registered on your property, or you are unsure of your rights respecting access to your property over a right-of-way, you should consult with a lawyer.

The term "right-of-way" in its strict sense means a right to pass from one point to another across a person's land, and is therefore strictly a right of passage only. In property and municipal law parlance, if you own property which is subject to a right-of-way, your land is considered a "servient tenement", because your land "serves" your neighbour's land. Your neighbour's land is correspondingly called the "dominant tenement."

The owner of the dominant tenement only has the right to cross over your land for the purpose of passing from his property to the highway, and cannot complain so long as the right is not interfered with or obstructed in any substantial way. This is called the "right of egress and regress."

As the servient tenement, you still have rights of enjoyment and use of your property, which is called having "the right of full dominion over your land". Therefore, you are entitled to make such use of the soil as you may think fit, and to exclude all and every person or animal not coming within the privilege of the granted right-of-way.

Likewise, the owner of the dominant tenement cannot enlarge the privilege conveyed by right-of-way or increase the burden on you without your consent. Your neighbour must be reasonable when passing on the right-of-way. A right-of-way is not a right to tarry, and does not imply a right to occupy and obstruct your property for long periods.

You may suspect your neighbour is wrongfully using the right-of-way. Some examples of improper use are for your neighbour to permanently park his motor vehicle on the right-of-way, inviting members of the public to loiter on the right-of-way, or building permanent structures on the right-of-way. If you notice your neighbour improperly using the right-of-way encumbering your land, you have options at your disposal.

Wrongful use of a right-of-way can lead to the enlarging of their right if nothing is done to stop the wrongful use. Thankfully, an enlargement of the use of an easement may be restrained through applying to the Courts for an injunction.

As the owner of the land encumbered by the right-of-way, you may also choose to erect a fence to stop your neighbour from improperly using the right-of-way. Recent jurisprudence does suggest that the servient tenement may erect a fence as long as it is done in a manner that will not substantially interfere with the dominant tenement owner's right of egress and regress. You should exercise caution and consult a lawyer before erecting a fence as such a course of action could obstruct your neighbour's right of egress and regress, and leave you liable for damages.

The Ottawa Valley and Eastern Ontario are filled with beautiful cottage and investment propertes.  If you plan to buy a cottage or if you have a cottage and wish to investigate any right-of-way that may be associated with it, you should consult with a lawyer. Vice & Hunter LLP has the experience to help you deal with your real property issues.

Please contact Patrick Simon at [email protected] for more information.

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