Recent statistics suggest that there is a record demand for rural properties in Ontario. This may, in large part, be due to the COVID-19 situation, which has resulted in more people having the option to work remotely and has led to a greater desire to move away from large urban centers. If you have found the perfect cottage or waterfront property and are eager to submit an offer before anyone else does, don’t forget to complete your due diligence. Rural properties are often not registered on plans of subdivision, and therefore may require some extra investigation to determine the exact location of their boundaries. One area of potential concern when buying property bordering most lakes and rivers in Ontario is whether or not the property actually includes the shoreline.

Why Does It Matter?

If your property does include the shoreline, it will come with a set of rights known as “riparian rights.” This means that you will have the right to access the water, the right to the undisturbed natural flow of the water, and the right to withdraw water for your own use. You can legally enforce these rights against any other persons or government entities.

Doesn’t Every Waterfront Property Include The Shoreline?

The short answer is no. In order to determine whether or not a particular property includes the shoreline, the property’s history would need to be examined. This may involve reviewing the description of the property in the original crown patent.  Many lakes and rivers in Ontario are bordered by shoreline reserves, also referred to as “shoreline road allowances.” These are 66-foot wide reserves that remain either with the provincial crown in unincorporated territory or with the municipality in incorporated territory.

Can a Shoreline Road Allowance Be a Problem?

If there is a shoreline road allowance between your property and the water, you do not own the shoreline. Therefore you do not receive the riparian rights that come with owning a truly “waterfront” property.  A potentially larger problem is that structures on the property, including decks, boathouses or even a cottage itself may be built on land that you do not own. You could be asked to remove any such structures.

What is the Solution?

It is possible to offer to purchase the shoreline road allowance bordering your property. Under the Public Lands Act, RSO 1990 c P.43, an offer to purchase a shoreline road allowance in unincorporated territory is made directly to the Ontario Ministry of Natural Resources. In incorporated territory, the offer is made to a municipality and the exact process differs somewhat depending on the particular municipality. Often the owners of neighbouring properties will be notified and given opportunities to object prior to a shoreline road allowance being closed. Thus, the process can be lengthy and it is important to determine whether a property is affected by a shoreline road allowance prior to making a firm offer to purchase the property. You may also want to consider including a condition or warranty regarding a shoreline road allowance in your Agreement of Purchase and Sale.

A good real estate lawyer, knowledgeable in rural property issues, is essential. If you are purchasing a waterfront property and are not sure whether or not it includes the shoreline, or if you have any further questions about shoreline road allowances or other rural property issues, please contact Jason Lane, lawyer at Woitzik Polsinelli LLP at 905-668-4486 ext. 241 or at jason@durhamlawyer.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”