QUESTION

I’m wondering if you can help out with a cottage road dilemma. Our road is on our property and is used by the owners of the cottage next door to access their property. We have allowed this in the past and, for the first time this year, they have given us money for the privilege. However, we’d prefer them to have their own road and have hinted at that. Does our accepting money for upkeep give them legal, continued right to the roadway? 

anonymous

ANSWER

No, accepting a few bucks for upkeep doesn’t mean you’ve given your neighbours a legal right to use the road in perpetuity, says Rusty Russell, a lawyer from Orillia, who literally wrote the book on the topic: Russell on Roads (Carswell, 2005).

But let’s get to what you really want to know. You say you’d like them to stop using your road altogether. Can you stop them legally? Assuming they don’t have a deeded right to use the road, that depends on a couple of things. How long have they been driving down your road? If it’s been 20 years or more, then they can apply for a “prescriptive easement,” which means since you’ve allowed them to use the road for that length of time, they may have a claim to continue using it. In which case, you’re stuck with them. But if it’s been less time, says Russell, then the question you need to ask yourself is “Do these people have any other way to get to their property?” If they have another option for road access – they could build through their own property, or use an unopened road allowance, for example – then the law is on your side. The access doesn’t have to be easy or cheap, it just has to be available – “as long as they can get there by hook or by crook,” as Russell puts it. But if there is no other way to get there from here, then the law is on their side.

And suggesting they go by water isn’t an option – they have to be able to get their honkin’ big SUV down the lane on Friday night with their headlights shining right in your back bedroom window, and their windows down blaring Moose FM radio… But I digress.

If there isn’t another way for them to get to their cottage, and sharing the road is really bugging you, then you could try to negotiate another route for them. You might offer them an easement across the back of your property, for instance.

You do want to keep talking and work out a solution yourselves. “Stubbornness is a luxury few people can afford,” says Russell. “Use your money for a simple solution, not for lawyers.” Mmm, now isn’t that refreshing? 

Christine Langlois   

Published in the July/August 2007 issue of Cottage Life.