It’s Cottage Season – Why is the Road Access Act Important?
Picture this, it’s the Friday of a long weekend and you have been looking forward to the cottage for weeks. You make the long two hour drive up north and just as you are about to drive across your neighbours property to access your cottage, as you have done for many years, you realize that they have placed a gate across the road. It turns out that your neighbours have sold their property and the new neighbours have decided to put a gate which restricts you from driving on their property. As a result, there is no access to your cottage which means your property is now land locked as this is the only road that provides access to your property.
The Road Access Act is not remedial in nature and does not provide any property rights over the access road, however it allows parties with vested interests in abutting parcels to pass over the road without being trespassers and to not be subject to road closures without a Court Order closing the road if it was found not to be an access road.
Section 2(1) of the Act says:
2 (1) No person shall construct, place or maintain a barrier or other obstacle over an access road, not being a common road, that, as a result, prevents all road access to one or more parcels of land or to boat docking facilities therefor, not owned by that person unless,
(a) the person has made application to a judge for an order closing the road and has given ninety days notice of such application to the parties and in the manner directed by this Act and the judge has granted the application to close the road;
(b) the closure is made in accordance with an agreement in writing with the owners of the land affected thereby;
(c) the closure is of a temporary nature for the purposes of repair or maintenance of the road; or
(d) the closure is made for a single period of no greater than twenty-four hours in a year for the purpose of preventing the acquisition of prescriptive rights. R.S.O. 1990, c. R.34, s. 2 (1).
If you find yourself being sued for trespass in a situation similar to this, you will be required to show:
1. That an access road exists as defined by the Road Access Act, which means a road that is not a highway and serves as a motor vehicle access route to one or more parcels of land;
2. That the road is on land not owned by a municipality and not a public highway;
3. The road is used as a motor vehicle access route; and
4. The road is used to access one or more parcels of land.
In the Superior Court case, 2008795 Ontario Inc. V. Kilpatrick, 2006, cottagers were using an access road on an adjacent property in order to access their cottages. When the adjacent land was sold, the new owners blocked their access and demanded a large yearly fee to access the road. In this case, the cottagers were required to show the above mentioned points as well as:
1. Access to this road originated by permission or consent of the previous land owner;
2. Proof that no other alternative access to the property exists;
3. Proof that closure of the access road prevents all motor vehicle access to their parcel of land;
4. Proof that the closure of this road causes the parcel of land to be land locked.
The cottagers were able to prove all items above and therefore the court said that, in closing the road, the Plaintiff ignored the requirements of the Road Access Act in barring the cottagers from access to their properties.
If you have issues accessing your property contact our Elizabeth Street office in Midland, Ontario by phone at 705-526-3791 for a quote or speak directly to one of our lawyers.
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