Just saying “cottage” elicits feelings of relaxation and conjures up images of a refuge from the hustle and bustle of everyday city life. As such, it’s no wonder that cottage goers, along with both provincial and federal governments, are making every effort to preserve this refuge. We encounter these efforts in the form of “scenic view” easements and access easements, as well as strict environmental bylaws and restrictions as to where and how large you can build your cottage or dock.
While such preservation of vistas and nature protect the environment associated with a cottage, it also complicates the buying and selling process. This article identifies a few of these complexities.
Easements:
Easements and rights of way are deceptively complex legal concepts and often the cause of litigation between neighbours. The point of most easements or rights of way is to ensure that adjacent properties are accessible or that views are protected. Sometimes these easements are noted on title, while other times they’re granted by legislation or arise out of implication.
Often, when there’s nothing in writing or on title, neighbours will litigate over whether such access rights exist. As such, if your client intends on buying a cottage that needs access to its neighbouring property or if they want to protect a view, don’t assume these rights are protected. Confirm if these rights are registered on title. If not, your client may have unhappy neighbours or a lawsuit.
Unregistered hydro easements:
Unregistered hydro easements can be highly problematic as they permit the hydro authorities to cut through your land and prohibit you from building on the hydro easement. What is more, case law and, in Ontario, HydroOne’s policy requires homeowners to be financially responsible for the maintenance of wires and poles found on or near their property. To complicate matters further, such hydro easements are not found on title. You must contact the appropriate hydro authority to determine such easements.
Waterfront improvements:
Never operate under the assumption that the existing cottage or dock on a property is in line with bylaw mandates. Take, for example, a dock. In Ontario, the provincial Public Lands Act and federal Fisheries Act will apply if the construction of a dock impacts both the shoreline waters and fish habitat. This means that the construction of a dock may require not only municipal approval, but also federal and provincial approvals and permits. Ensure that these permits are in place before your client purchases any oasis.
Property insurance:
Proximity to a fire hall can impact the rate charged for fire insurance. Typically, insurance companies focus on whether the structure is within five miles of a responding fire hall. In certain locales, insurers may not provide coverage given lack of adequate fire protection. Get this information before an offer goes in.
Seasonal zoning:
While your client may want to escape to the cottage year-round, it doesn’t mean that this is an option. Some rural residential properties are zoned “seasonal”, which means roadways are not maintained during the winter. Apart from no access during certain seasons, owners may also be on the hook to provide and pay for maintenance. What is more, seasonal zoning means that the municipality may not provide emergency services in the wintertime.
Water supply:
If the water supply for the cottage is municipally provided, you’re in luck. Unlike most cottages that are supplied by well water, you don’t have to be concerned with potability. This is because there is no reliable potability certificate for well water, as well as water drawn from lakes or a cistern. What is more, wells supplying multiple properties may be subject to the Ontario Clean Water Act, and easements for pipes from neighbouring wells (if registered) may violate the Ontario Planning Act or a similar act in your province. As always, request applicable certificates and obtain warranties from the seller that the water supply is in accordance with all federal, provincial and local regulations.
Septic:
Septic systems require approval by the municipality or the Ministry of Natural Resources. Ask the sellers for such documentation. If your clients plan to make any additions to the cottage that affect the septic system, they are likely required to get additional approval to satisfy regulatory requirements. As such, if they plan to rebuild and expand the cottage, ensure that such growth is permissible.
Natalka Falcomer is a lawyer, real estate broker and Certified Leasing Officer who started her real estate career in private equity. She created, hosted and co-produced a popular legal call-in show on Rogers TV and founded and recently sold Groundworks, a firm specializing in commercial leasing law. She is currently the Chief Real Estate Officer of Houseful.ca, leading the development and expansion of the company’s personalized home buying and selling experience for the Canadian market. She sits as an advisor on NAR REACH Canada and is the former multi-year board member of the Ontario Trillium Foundation.
