If you’ve ever seen the 400 highway or the 35/115 on a Friday afternoon (although even Thursdays these days) or on a Sunday evening, you know the allure of cottage season. As soon as the temperatures start ramping up, a large portion of the GTA flees north to rustic cabins, fully stacked cottages, and lake access that cannot be beat.
Buying a cottage is often considered part of the Ontario dream, except it’s not always so simple. Cottages may be rustic and ramshackle, or they can resemble luxury homes, but when we think of them from a legal perspective it’s easy to simply think of them as another real estate holding.
Yet there are elements of cottages that are unique to cottages specifically, and it’s important to know exactly what you’re buying before signing any of the paperwork. Beyond that, who has access to your property may be more expensive than you had in mind. Here are a few things to consider as you look at your next summer property.
Know Before You Buy
When you buy a home in a familiar suburb, you likely know a few things going into the transaction. If the neighbourhood is already familiar to you, then you have a sense of your surroundings - the local population, what local traffic might look like, the seasonal weather patterns, etc. Yet when you buy a cottage far from home, these may be completely unfamiliar.
What is the neighbourhood like? What sort of amenities are available locally - i.e: do you have access to major retail? Can your health care needs be met in that community for prolonged period of time? The tourist season aside, what do your prospects look like for staying in that property for a winter? Is there adequate snow clearance and highway access, or are you effectively cutting yourself off from civilization? You may know these things about your own neighbourhood, but not an entirely new one.
What You Need To Know About Easements
Road access may be one issue, but if your property has waterfront access, that means that it may be how others access the water as well. That means that your property is likely to have some sort of easement attached.
In short, an easement allows somebody else to access a portion of your property for a designated purpose. We see easements every single day except we likely don’t give them much thought. For example, if your neighbour happens to have an electrical or cable box at the front of their lawn that provides power or internet for much of the street, that’s an easement with the utility company to place and access the box on their land.
When it comes to cottages however, easements may get more complicated. Cottage properties often involve what are known as ‘right of way’ easements, which means that you have access to someone else’s land, or someone else has access to yours. Your neighbour may have an easement over your land to access the highway or the lake, or you may have an easement over theirs for a similar purpose.
Easements can become thorny because while some are noted on title to a property, others are not. If you purchase a new property, and your neighbour comes over to welcome you and to let you know that ‘by the way, they were good buddies with the previous owner and always used your lawn to park their boat, or your dock to tie up their dingy,’ that puts you in an awkward spot.
Before you purchase, your lawyer will conduct a title search to see if any easements are registered on title to the property. If they are, you have a clearer sense of what you’re buying, but if they’re not then you may be in for some significant headaches with your neighbours. Even still, some easements such as for hydro may not be on title, and may still imply requirements of you as a homeowner to maintain wires and poles on your property.
When things up north go south
In the recent Court of Appeal case of Roalno Inc. v. Schaefer, 2024 ONCA 262, a real estate deal fell apart because both sides believed that an easement existed when it in fact did not. The buyer refused to purchase unless the easement was removed, or the price was lowered. The sellers refused, the buyer refused to close on the purchase and then sued the sellers for specific performance, which would force them to go through with the transaction.
There had been debate prior to the transaction over whether a prescriptive easement - one that’s been enjoyed for more than 20 years and so is now entrenched - actually existed. The prospective buyer believed that a neighbouring property had an easement over the land that he was looking to purchase for road access, but that easement did not actually exist.
In short, the existence of the easement became contentious, and the parties involved went to battle over a mistake. As the Court stated, the purchaser “cannot rely on Mr. Semple’s legally erroneous belief that an easement by prescription might exist to justify its refusal to close at the agreed-upon purchase price.”
The case itself is legally complex, but the message is clear - a clear investigation and due diligence into a potential cottage purchase can save a tremendous amount of headache and stress before purchasing! This is only a brief overview, but there are significant legal issues with cottages that you usually don’t see elsewhere, so you want a lawyer who has experience and knows exactly what to look for. Contact our office today before finalizing your deal.
