It’s Cottage Season – Why is the Road Access Act Important?

Picture this: it’s the Friday of a long weekend, and you’ve been looking forward to getting to the cottage for weeks. You make the long two-hour drive up north, and just as you’re about to drive across your neighbor’s 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 neighbors have sold their property, and the new owners have decided to block access with a gate, restricting you from driving on their property. As a result, there is no access to your cottage, leaving your property landlocked, as this is the only road providing access.

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 ensures that road closures cannot occur without a court order if the road is deemed an access road.

Section 2(1) of the Act states:

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 an 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;

(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 similar situation, you will need to show:

• 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;
• That the road is on land not owned by a municipality and is not a public highway.
• The road is used as a motor vehicle access route; and
• 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 to reach their cottages. When the adjacent land was sold, the new owners blocked access and demanded a large yearly fee to use the road. In this case, the cottagers had to prove the above points and also demonstrate:

• That access to this road originated by permission or consent of the previous landowner;
  
• That no alternative access to the property exists;
  
• That closure of the access road prevents all motor vehicle access to their parcel of land; and
  
• That the closure of this road causes the parcel of land to be landlocked.

The cottagers were able to prove all the required points, leading the court to rule that, by closing the road, the plaintiff had ignored the requirements of the Road Access Act, unlawfully barring the cottagers from accessing their properties.

If you are experiencing issues accessing your property, contact our Midland office in Ontario by phone at 705-526-3791 for a quote or speak directly to one of our lawyers.

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