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Road access critical when buying cottage

The most important question for anyone buying a cottage property is always, "How do I get there from here?" After all, there's no point spending hundreds of thousands of dollars on a recreational home if the only way to get to it is by helicopter.
 
Access to cottages was the issue in a case heard by the Ontario Court of Appeal last year. A group of cottagers live year-round on the shores of Lake St. John in Ramara township. The cottage sites are on reserve lands of the Mnjikaning First Nation, and the cottagers pay the Crown an annual rent of $1,400 to $1,500 each.
 
The only existing motor vehicle access to the cottages is over a road located on an adjacent lot, purchased in 2003 by a numbered company owned by the Mnjikaning First Nation.
 
The previous owner of the adjacent lot charged the cottagers a $500 annual fee for the use and maintenance of the access road. When the numbered company bought the lot, it advised the cottagers that they would each be required to pay $2,000 annually, but only for seasonal access between May and November.
 
It wasn't long before the corporation owned by the First Nation band sued two of the cottagers for trespass by snowmobile, and a group of cottagers sued the First Nation corporation for an injunction restraining them from interfering with road access to and from their cottages.
 
The case involves the interpretation of Ontario's Road Access Act, originally passed in 1978 to resolve disputes that occur when the property of one neighbour is landlocked, and the only vehicle access to it is over a road on property owned by another neighbour.
 
The act provides that the owner of the access road generally cannot close it without a court order. By implication, the act allows the owner to close the road without a court order if there is "alternate road access."
 
The court in this case had to decide whether the cottagers had "alternate road access" under the act.
 
The trial took place in June, 2005 before Justice Peter Howden. The native band argued that it was entitled to close its access road without a court order because the cottagers had two alternatives: They could travel over the existing road on payment of the $2,000 user fee, or they could use a municipally-regulated unopened road allowance.
 
Under the legislation, an access road is a road on private land that serves as the only motor vehicle access route to one or more parcels of land. An unopened road allowance is a strip of Crown land reserved for the purpose of making a road sometime in the future, but it does not actually exist on the ground. In this case, the unopened road allowance was not useable.
 
Justice Howden ruled in favour of the cottagers. The roadway was an access road within the meaning of the legislation, and could not be closed or blockaded without a court order.
 
The cottagers were granted an injunction preventing the land owner from blocking the road, subject to payment of a yearly fee of $500 by each cottager to the landowner. The fee had to be based on the actual maintenance and repair costs of the existing gravel road.
 
The cottagers were awarded $57,000 plus GST in court costs against the First Nation corporation.
 
The band appealed and the matter reached the Court of Appeal last summer. Writing for a three-judge panel, Justice John Laskin upheld the trial decision, dismissed the appeal and ordered costs of $8,000 against the First Nation corporation.
 
He warned the cottagers that although they won the case, they would have no defence to an application by the First Nation corporation to close the access road if the township granted approval to open the unopened allowance. In that event, the cottagers would have to pay an estimated $450,000 in construction costs for the new road.
 
Road access is perhaps the most critical aspect of buying a cottage. This even applies to island cottages, where access to a place to park a car and launch a boat is vitally important. A cottage is of no value if there's no legal way to get there.
 
 
Bob Aaron is a Toronto real estate lawyer whose Title Page column appears Saturdays in The Toronto Star. He can be reached at , phone 416 364 9366, fax 416 364 3818. Visit the column archives on his website at www.aaron.ca.