Laing Parent LLP

Access to Property

March 28, 2015 | Comments Off on Access to Property

ACCESS

There are a few differences that people moving from the city may find in looking at country property.  One of the biggest questions sometimes is, “How do I get to it?”

In the city, you probably never thought twice about how you got into your driveway or who owned it.  The road leading to it was a public road and it was maintained at the expense of the municipality.

However, in the country, some of the most quaint and appealing properties are not necessarily connected to a municipal roadway.  It is one of the things that you have to check into before making your offer to purchase.  There are many thousands of miles of private roads in the country, which means that they are owned by individuals or land associations, not the municipality.  That means that you may be picking up the cost of snow removal, maintenance and repair.  And you’d better make sure that no one can close the road on you.  It sounds like a simple question, but you had better make sure that you have the right of access.

 

PRIVATE ROADS

Private road are not uncommon in rural housing.  By definition and as the name implies, a private road is owned by someone other than the public.  The owner is responsible for the care and maintenance, but the cost is usually passed along to the people that make use of it.

You will often see private roads in areas where the properties were developed for cottages.  Sometimes a home owners association owns the private road.  But the point is that the municipality has no responsibility to clean or maintain it.

The best way to ensure that your right of access over a private road is not interfered with is to have a right-of-way set out right in the deed.  Your Offer to Purchase should specify that it is a condition of the purchase that there be a deeded right-of-way connecting the property to a municpal road or highway.

One of the things to remember is that a right-of-way simply gives you the right to make your way across or along someone else’s property.  It does not give you the right to do anything else on it, so don’t assume that you will have the right to use the road as a parking area for your guests.  You don’t.  You will only have the right to walk or drive over it.

If the property you want to buy has water, gas or sewage running along the private road, or if you will need to install any services in the future, for example if you are buying vacant land with the intention of building, you had better be sure that the right of way specifies that it grants you the “right-of-way in, on, along, under and over” the private road.  If the dimensions of the right-of-way have never been measured, then a survey will have to be done in order to include the description in your deed, and the cost of the survey should be considered in making your offer.

If you are establising a new right-of-way for the first time you should ensure that it is big enough to be used as a public road.  Most public road allowances are 66 feet wide (what is quaintly referred to as a “chain” historically), and if there is any thought that someday you may want the municipality to come in and take over the roadway as a municpal road, you had better make sure that the right-of-way is also 66 feet wide, or it will be condemned to remain a private road forever.

 

EASEMENTS

Of course, it is possible to claim an easement if there is no deeded right-of-way.  However, this is not as reliable a means of establishing your access to the property.  The old common law rules say that if you can show that the owners of your land have consistently, peacefully, and openly utilized an access to it from a public roadway, then you have the right to continue to use that access, called an easement.  However, you have to be able to prove that this access was continually, peacefully and openly used WITHOUT the permission of the true owner for at least 20 years in order to gain any sort of enforceable right to the easement.  If the true owner gave permission for you or the prevous owners to use the access, then no easement is created, and the permission can be withdrawn at any time.

In other words, without the deeded right-of-way, a mere assurance that “everyone always used this road” to get to the property will do you little good if you cannot prove it.  All the true owner has to do to maintain ownership and the right to prohibit your use of the road is show that he or she closed or blocked off the road with a rope or a chain periodically over the last 20 years, and any claim to an easement is defeated.