What you need to know about cottage roads in Haliburton County

With apologies to American poet Robert Frost, something there is that doesn’t love a road.

Private roads are one of the most common causes of disputes between neighbours in cottage country.  With no municipal government responsible for them,  you and your neighbours are left to sort things out for yourselves. If not managed well, your road can can cost you years of aggravation and expensive legal headaches.

The laws governing roads go back to Roman times and try to balance two things: the right to ‘quiet enjoyment’ by the property owner over or past whom the road passes; versus the right of the owner further down the road to access his land.

When more than one owner shares a road, use of it is typically set out in a series of right-of-way agreements giving the owners further down the right to use as much as the road as they need to get to a public road, that is, one open to everyone and maintained by the municipality. Usually, each owner owns the part of the road crossing his property. If a municipal road leads to a private road that crosses properties A, B and C, the owner of C has the right to use it over A and B’s land to get to the public road, while B is entitled to use only the portion that crosses A. Normally B (and A) do not have the right to use the part of the road that sits on C’s land, because it’s not necessary to access their property.

These agreements should be registered on title where they can be easily found and examined. Often, however, there is no agreement, at least not on title, and your access rights will depend on a number of factors, including how the road has been used in the past, any tacit understandings between neighbours, and the laws governing roads.

There may be additional agreements concerning who pays for maintenance and snow plowing, and a road association which takes out liability insurance on behalf of everyone. While in most cases you can’t be forced to contribute to these costs, you should factor them into your annual budget or risk making quick enemies of your new neighbours. Your local Realtor can find out the dues you’ll be expected to pay to the road association and help you get estimates for improvements, maintenance and plowing.

There are two key points every buyer needs to know about roads. First, a right-of-way is exactly that: it give you the right to traverse your neighbours’ property. That right extends to your family, friends, deliveries and tradespeople, within reason. You do not, however, have any right to improve or change the road without permission of the owner of the land over which the road crosses.

In practice, that means if you think you’ll need to do something to a road in order to make your access safe, or easier, or four-seasons, you’d better get permission from everyone over whose land you plan do do work on the way to your property, before you sign an offer to purchase.

The second point to remember is, contrary to commonly-held opinions, you cannot rely on the Roads Act. The Roads Act entitles landlocked properties to access and can be used to force neighbours to grant you a right of way, but only if there is absolutely no other way to access your property. A recent case confirmed that if a property can be accessed by water, the owner is not entitled to access over land. Even when she is, the process for obtaining access this way can be expensive and take years.

When you buy a property, your lawyer will check its road access to ensure it is adequate and permanent. But if you want to be smart about it, have your lawyer check before you make an offer. While a lack of proper access is often a sufficient reason to pull out a deal, you don’t want to have to make a decision like that at the last minute, after you’ve made what’s likely to be a large emotional investment in your dream home or cottage.