By:Jayson Schwarz LLM
The sun glistens like a million diamonds on the blue water of the lake. The sky is filled with fluffy clouds and skiers cut a frothy wake in the July sun. Cottage life at its best, but how do we get there without all of the hidden dangers that exist in buying our dream. Buying a cottage is different in many ways from buying a house or condo in the City. There are different kinds of ownership and more importantly there is a huge difference in title and things that need to be checked in cottage country. Today’s article will focus on one part of buying a simple freehold cottage somewhere in Ontario on a lake.
So, we have spent many weekends looking and finally identified a cottage we want. The agent has done up the Agreement of Purchase and Sale (the “Offer”) and we are ready to sign . . . WAIT!!!!!!!
The first question to be asked is whether there is a current survey, an existing survey or the vendor should supply one. This is a must when buying a cottage. The reason is that cottage lots are often irregular, with uncertain boundaries and may have easements, shore road allowances and road allowances running through them. The cottage may have been built too close to the water or a lot line or maybe access is only available through a neighbour’s property. All of these things can lead to danger, disappointment or disaster. We recommend to all of our clients that if a survey is not available and the Vendor doesn’t co-operate, then the Purchaser must have the right to have a survey done at his or her expense and that the Purchaser has a right to terminate the transaction if the survey discloses a matter that in the Purchaser’s unfettered discretion detracts from the Purchaser’s enjoyment of the property.
The survey will disclose many of the matters that can be of concern. As an example a friend recently purchased a cottage and in the heat of the moment, waived the survey clause, but still had the right to do one. His survey disclosed that a “Road Allowance” cut through the middle of the property and in fact bisected the original cottage built in 1932. A road Allowance is a 66’ wide strip that generally runs form a township road through private property to the lake and if needed could be developed by the local municipality to provide access for the public to the lake. In this case there were 2 problems: the first the possibility of a road someday and the second the fact that my friend did not own the whole building and could not fix it up. In this case having a good lawyer and an understanding municipality paid off and the Township offered to lease the area around the building for 99 years.
Almost every lake in Ontario has a deeded parcel that belongs to the local municipality running along the shore line. This is called the “Shore Road Allowance”. Many years ago this was put in place to allow public access to the water for roads, lumbering and public use of all kinds. As development has evolved and private individuals have acquired and built on the property abutting the Shore Road allowance it has become the practice of the municipalities to sell the Shore Road Allowance to the adjacent owner. The survey will demonstrate where it is and who owns it.
The next issue is to establish the boundary lines. Cottage properties are often ill defined and if you have plans to demolish, rebuild, remodel, add or subtract buildings on the land you are buying this is critical. Quite often access is an issue either for you to get into your cottage because it may be on a private road (who owns it?) or others may have the right to drive over your property which can be quite disturbing. So there it is the first thing to consider, GET THAT SURVEY!!! not something to be overlooked!!!!!
Buying a cottage should be an enjoyable experience. Please find a lawyer that understands cottage property and get good legal advice BEFORE you firm up that Offer.