Buying Waterfront in Eastern Ontario: When Your Lot Stops Short of the Water

What a shore road allowance actually is

When much of Ontario was first surveyed, the Crown laid out road allowances between lots and, in many townships, along the shores of lakes and rivers. Most of the shoreline ones were never built as roads. They stayed on the books as narrow strips of public land between the private lot and the water.

Ontario's Municipal Act, 2001 still treats them as highways. Section 26 lists all road allowances made by the Crown surveyors that are located in municipalities as highways, unless they have been closed. Section 30 says a highway is owned by the municipality that has jurisdiction over it. So an untouched shore road allowance in a township is, legally, a municipal road, even if it is grass, rock and cedar and nobody has ever driven on it.

Not every waterfront property has one. Whether a strip exists depends on how the original township was surveyed, and many owners or past owners have already bought theirs. That is exactly why it has to be checked property by property.

Why it matters when you are the buyer

If the allowance is still open, the property line usually sits back from the water, and the part of the yard most people are paying for is public land. A few practical consequences follow:

• Building and repairs. North Frontenac Township, for example, states that it will not issue building permits for structures on township-owned shore road allowances without proof of ownership. That reaches docks, decks, sheds and repairs to anything already sitting on the strip.
• Long use does not make it yours. Section 16 of Ontario's Real Property Limitations Act says the adverse possession rules do not apply to land in a surveyed road allowance where the freehold is vested in the Crown or a municipality. Apart from a narrow saving for rights acquired before June 13, 1922, thirty years of mowing it does not change who owns it.
• It is not private. Because it is a public highway, you cannot treat it as your own private shoreline or rely on keeping the public off it.
• Other rules still apply. Owning the strip does not replace conservation authority permits or shoreline rules. If the property is near a regulated area, the floodplain and conservation authority side is a separate question.

How to find out before it becomes your problem

None of this shows up on a showing. You find it in the paperwork, and the earlier the better:

• Get the survey. An up-to-date survey or reference plan will usually show a strip labelled as a road allowance between the lot and the water if one exists. If the only plan is decades old, read what an old survey can and can't tell you.
• Ask your lawyer to look for it specifically. A legal description that ends a measured distance short of the water, or a parcel register showing the municipality or Crown owning the adjoining strip, are the usual signs.
• Look for the closing by-law. Under section 34 of the Municipal Act, a by-law permanently closing a highway does not take effect until a certified copy is registered in the land registry office. If the seller says the strip was bought, there should be a registered by-law and a transfer to match.
• Call the municipality. Ask whether the allowance in front of that lot is open or closed, whether they sell shore road allowances, and what their current policy and fees are.
• Ask the seller directly. Whether they or a past owner ever applied, and whether anything on the strip was built with a permit.

Buying the strip from the municipality

Most townships will consider selling a shore road allowance to the abutting owner, but it is a council decision, not a form. The Township of Rideau Lakes guidelines in Leeds and Grenville are a good example of how it works locally:

• an application, reviewed by staff and circulated to agencies
• a recommendation from the township's planning committee and a decision by council
• if approved in principle, the township's solicitor searches title and a survey is prepared
• public notice and a public meeting, then a by-law if there are no valid objections
• the by-law is registered and the land is transferred once it is paid for

Rideau Lakes asks the applicant for a $4,000 deposit to the solicitor to cover legal, survey, appraisal and advertising costs, and says all costs of the process are borne by the applicant. Council weighs the public interest, including water access, so approval is not automatic. North Frontenac estimates its process at roughly 8 to 12 months. Fees, land prices and policies differ from one municipality to the next, so get the current numbers from the township that has the lot.

On some waterways there is one more layer. Section 34 also says a by-law permanently closing a highway cannot be passed without federal consent if the highway abuts land owned by the Government of Canada, including land covered by water. Whether that applies to a particular shoreline is a question for the municipality and your lawyer.

Where it fits with everything else on title

A shore road allowance is a title question, not a condition question. It sits alongside easements and rights-of-way as one of the things that decides what you are actually getting, and it is worth asking your lawyer how it is treated in your title insurance policy rather than assuming it is covered.

What I would do, buying on the water around here

If you are looking at a lake, river or St. Lawrence property anywhere between Ottawa and Brockville, a few habits save a lot of grief:

• Ask for the survey on day one, before you fall for the dock.
• Put the question to your lawyer in writing: does this lot run to the water, or is there an allowance in between?
• If there is an open strip, phone the township before you waive and ask what their process, timing and costs look like today.
• Treat the price of the strip and the time to buy it as part of what the property really costs.

Plenty of good waterfront still has an open allowance in front of it. It is usually solvable. It just should not be a surprise.