One area of real estate law that I find disturbingly unclear and willfully ignored is the status of Road Allowances and their use by the public. The following article focuses on traditional Road Allowances, which are the 66’ wide strips of land that divide the provincial lots and concessions in Ontario. The same principles will apply to Shore Road Allowances, which are the 66’ reserves that sometimes run around lakes and rivers (navigable waters); but Shore Road Allowances have further nuances, and I will leave that for another article.
As real estate lawyers searching titles one of the things we search for is legal access to the subject property, which is a matter of good title. With rural and cottage properties there are countless roads and rights of way that cross over Road Allowances. Real estate lawyers searching title tend to treat those as legitimate public crossings and then focus on the more pertinent private land issues. That has been my practice, and on the sale side I have never been seriously requisitioned about the right to cross a Road Allowance (assuming it is not closed). I guess I can say with some confidence, therefore, that at least based on experience, crossing a Road Allowance does not impede good title.
That said, I have had files where access from a public highway to a deeded right of way crosses a Shore Road Allowance, and the Town of Gravenhurst, for example, has required users to enter into a license agreement to do so. More recently I have seen an e-mail from the Township of Severn telling a property owners that “If they would like to use the property for day use, an agreement (with liability insurance) would need to be made with the Township Council to use the municipal road allowance for access.” That’s scary: are they talking about using their property for the day, or just the Road Allowance; either way it’s concerning.
The confusion is well illustrated by a Policy Statement issued by the Township of Georgian Bay on the subject (TRA-010-10). First they state: “Where an unopened road allowance currently has some form of use it is referred to as an existing or public right of way.” Excellent, so now we are dealing with a right of way. That is a legally defined term that I understand; and good for my cause. Then they say: “It is the general policy of the Township that road allowances, shore road allowances or existing public rights-of-way that provide access to water will not be obstructed.” OK, we’re hedging a bit; so they can obstruct them but won’t do so if they lead to water. I guess I am still comfortable that we should have continued access if there’s an existing road on a Road Allowance But then they say: “No person shall … use any unopened road allowance … without the specific written approval of the Township” Now I am confused again.
By the way, Townships are not always right in their policies.
I believe the confusion centers around the Municipal Act which first states that all Road Allowances located in Municipalities are Highways, and are therefore public, but the Act then gives jurisdiction over those Road Allowances to the municipalities. The municipalities thus take the position that, as owners, they can control the nature and extent of the use. It’s not unreasonable on their part, given the state of the law with respect to owner’s liability. But, it begs the question: what was the purpose of the Road Allowances in the first place if not to give the owners of Concession lots legal access across the province, and what good is legal access if you can’t build a road or even “use” it? Moreover, we have to acknowledge the basic fact that Road Allowances are, by statutory definition, common and public highways.
I am left having to draw my own conclusions and summary of Road Allowances as follows (that is until someone convinces me otherwise). They fall under one of four categories:
(i) Closed: Closing a public road requires the passing of a by-law. Once this happens it is no longer a public road, and use of it would require an easement or other form of license from the owner, whether the owner is now the Municipality or it has been conveyed to private individuals.
(ii) Opened and Assumed. This is a public road.
(iii) Opened and unassumed. My understanding of the term “opened” is simply a description of whether there is an actual road in existence. An opened and unassumed road, therefore, is a road created by someone other than the Municipality (had it been created by the Municipality they would have expended public money and there would be deemend assumption – the subject of a further article). Such a road is technically public, because it’s on a Road Allowance, but it could be restricted or closed by the Municipality. This is the typical rural/cottage road situation, and a road which might have the familiar sign: “Road unassumed, use at your own risk.”
(iv) Unopened (and by logic unassumed): This is the scenario where there is no existing path or road, but the Road Allowance is technically public. Rightly or wrongly, the Municipality will likely exercise control over its future development.
For my part I will continue to treat crossings over road allowances as legal access via public lands, but with the caveat that there is always the possibility that the municipality could restrict or close the road, unlikely as that may be.
NOTE: The foregoing is provided for information purposes only and does not constitute legal advice. Every situation is unique and you should seek professional advice as it relates to your circumstances. Homer A. Frank is an experienced real estate lawyer practicing in Muskoka and Simcoe County. He is always available for service or referrals, and is always humbly open to commentary or enlightenment on his writings.