When purchasing a cottage, there are several aspects of the transaction to consider before committing to the purchase which may not be readily apparent including access, ownership of the land at the water’s edge, water and septic and zoning.
Access
Access to a cottage property is the one of the most common issues that a real estate lawyer encounters when dealing with cottage properties.
The best means of access to a property is by a maintained public highway but the mere fact that a highway abuts the property does not guarantee access. An entrance permit may be required by the municipality in order to access the highway and if the proposed entrance is in a location which could cause a traffic hazard, a permit may be refused.
Many cottages are accessed by a right of way or easement over another property or properties. It is important to review the title to the cottage property to ensure that there is an established right to access the property and that that right is properly documented. An easement or right of way may be established by express transfer, by implication or by prolonged usage.
In cottage areas, often a right of way may be several kilometres in length providing access to a series of lots extending to the nearest public highway. The more owners who use the right of way, the more likely it is that the right of way is administered through a cottagers’ road association. It is important to determine if such an association exists and whether there is a formal agreement setting out, among other things, the amount of money collected from the members to maintain and repair the road. If there is no cottagers’ association, maintenance of the road is a significant concern.
Shoreline Road Allowance
All property was originally owned by the Crown. At the time property was transferred from the Crown into private ownership, the Crown often retained a strip of land at the water’s edge as a road allowance. The width of the shoreline road allowance was usually a “chain”, the measurement used at the time properties were first surveyed. A “chain” equals 66 feet and for that reason, most shore road allowances are 66 feet wide. If the original road allowance has not been closed, it is owned by the Municipality. It is important to determine whether the shoreline road allowance has been closed and transferred to the adjacent land owner. If it has not been closed, most cottage owners approach the Municipality and purchase the road allowance at the water’s edge. If the road allowance is already used by the public in the form of a travelled road or a public beach, there is little likelihood that the road allowance can be closed.
Shoreline Ownership
The bed of every navigable waterway is owned by the Crown. The bed of a waterway is the land normally covered by water. The water's edge is the limit of the bed and, therefore, the limit of the ownership of the land. If the water's edge moves imperceptibly from year to year, adding dry land by way of accretion or removing it by way of erosion, then the legal boundary moves as well. Shoreline structures such as boathouses and docks are usually located mostly on the bed of the waterway and therefore on Crown land. The Crown generally tolerates the location of these structures on the shoreline, sometimes requiring that the adjacent land owner obtain a lease, licence or land use permit for the privilege with a related annual fee. Any filled land onto the bed of the lake becomes the property of the Crown. For example, additional sand added at the shoreline to create a beach which extends onto the bed of the lake will become the property of the Crown.
Any shoreline work on the property requires the approval of the Ministry of Natural Resources and, of course, the local municipality as to zoning and building requirements. Any request for a permit will result in a search to determine the extent of the property owned by the Crown and the land owner at the water's edge. The Ministry has the right to regularize the use of the land once they become aware of any irregularities. There are three options available. The owner may be allowed to apply to purchase the filled land from the Crown, the Crown may enter into a licence agreement or an application may be made to remove the filled land and restore the property to the original water line.
Water and Sewage Systems
Cottage properties are usually serviced by wells and by septic systems.
The issues related to water are quality and quantity. It is important for the agreement of purchase and sale to contain a condition allowing the purchaser to take steps to measure both the bacteriological and chemical content of the water and to determine whether the quantity of water the well produces will meet the needs of the purchaser. A well which has provided sufficient water for a small rural family may not produce an adequate quantity for a larger family with different expectations from their water source.
Most septic systems are designed to operate between 20 and 30 years before they require replacement although many systems have operated for much longer. The agreement of purchase and sale should contain a condition allowing the purchaser to inspect the system and satisfy themselves with respect to the condition of the septic system. Septic systems require a certificate of approval or a building permit and a search for the certificate or permit should be made to ensure that the septic system was installed in accordance with the appropriate building standards.
Zoning and Conservation Authority Issues
It is advisable to review the municipal zoning requirements for the cottage property to determine whether the property is zoned for seasonal or year round use. If the property is zoned for seasonal use only, the municipality will not supply services (including road maintenance and garbage collection) during part of the year.
Zoning requirements usually include setbacks from the water’s edge and preservation of mature trees. In addition, there may be stringent regulations in areas considered environmentally sensitive which may allow only very limited construction.
As always, it is important to have an experienced lawyer involved from the very beginning of a real estate transaction to ensure that all of the requisite searches are completed in order to adequately protect the interests of the cottage owner.