Airbnb tenants of a landlocked cottage are allowed access to the lake via the right-of-way – Real estate and construction

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It is not uncommon for non-waterfront cottage properties in Ontario to have access to water through a right-of-way. The rights-of-way can be registered on the title or acquired by law (prescription) after an extended period. Some rights-of-way are expressly limited to pedestrians rather than vehicles uses. Others may have seasonal limitations or ancillary rights in addition to being a lane. Of course, riparian owners whose lands are crossed by a right-of-way may wonder who is authorized to use the right-of-way and for what purposes.

A recent decision by the Ontario Superior Court of Justice considered whether the use of a right-of-way could be restricted to owners of the non-waterfront cottage and their non-paying guests, in order to prevent the use of a right-of-way. use of right-of-way by Airbnb users and similar high-revenue rental programs: Fisher v. Saade, 2021 ONSC 1241 (CanLII).

The plaintiffs owned waterfront property on the Bay of Quinte. The respondent owned the non-riparian property and had a registered right of way over the applicants’ land to access a swimming beach. There was no restriction on what would happen if the landlord’s tenants used the right-of-way or otherwise restricting the use of the right-of-way to the landlord and his or her friends or family.

The parties agreed that the right-of-way was for pedestrians only, but contested that the respondent’s right to use the right-of-way included paying guests, tenants or other guests. There was no problem with any municipal regulations or restrictions regarding the rental of the property. Rather, the applicants’ main concern was what they saw as the “commercialization” of the right-of-way, which arose from the high traffic activity associated with AirBnB rentals. Simply put, they couldn’t agree on who could access the lake using the right-of-way.

In deciding the issue, the court drew on previous cases which focused on the specific words creating (or granting) the right of way and the historical circumstances of the use of the land in question at the time of the grant: Fallowfield v. Bourgault, 2003 CanLII 4266 (ON THAT); Golisky v. Romanuik, 1951 CanLII 337 (ON CA), [1951] 2 DLR 475; Bell v. Marsh, 1951 CanLII 338 (ON CA), [1951] 3 DLR 486.

The court concluded that the wording of the right-of-way was not unclear and that its purpose was clearly to provide access to water to the owner of the respondent’s property. The applicants’ historical use of the right-of-way has never had any kind of limitation and in fact at various times in the past there were clear references to the use of the right-of-way by traders. and guests.

The court concluded that the reference to the “owner’s use” of the right-of-way could not be interpreted to mean only the owner and only his or her non-paying guests or guests. In addition, the ownership of a chalet usually includes the right to rent it out to paying guests. Many cottage owners fund their annual property taxes and maintenance costs with this rental income. The applicants sometimes rented their own chalet. The tenants of the respondent’s chalet may of course wish to use the right-of-way.

The court considered that this use of the right-of-way should not have come as a surprise to the plaintiffs and that it was unreasonable for them to require that the right-of-way be limited to the respondent and his non-paying guests and to members of his family. If this type of severe restriction had been foreseen, it should have been clearly worded when recording the hold on title.

As a result, the court dismissed the plaintiffs’ request to limit the use of the right of way to unpaid friends and family of the respondent.

At the same time, however, the court found that the respondent had unreasonably expanded the use of the right-of-way beyond its purpose of access to water. Apparently, Airbnb guests of those interviewed had complained that there was nowhere to sit and enjoy the beach. As a result, the Respondent had installed a ramp and a dock on the Plaintiffs’ property as well as furniture and a surveillance camera. The applicants sought an order requiring the respondent to remove these barriers.

A ROW may include “ancillary rights” which are reasonably necessary for the use and enjoyment of the ROW as intended. These ancillary rights must be reasonably necessary for the use and enjoyment of the right of way. An example cited by the court concerned the case of a water right-of-way for the purpose of accessing an island, which resulted in the ancillary right to build a wharf: Mackenzie v. Matthews,
1999 CanLII 19931 (ON CA)
. This ancillary right was necessary so that users of the right-of-way could moor their boat to access the island. However, ancillary rights cannot be unreasonably extended beyond the objectives of the right of way.

In this case, there was no convincing evidence that the ramp and wharf constructed by the respondent were reasonably necessary to access the body of water and the swimming area. In this regard, the complaint from Airbnb customers about the lack of a relaxation area was revealing. Respondent could not in fact provide waterfront property to either the tenants or his own enjoyment for the simple reason that he did not in fact own any waterfront property. In the words of the court, the right-of-way is “a path to and from the water. This is the extent of it.

The court said the respondent had an obligation to ensure that all guests understood that the sole purpose of the right-of-way was to access water. The wharf and ramp were an inappropriate extension and use of the right-of-way. Cameras that have focused primarily on a neighboring property without consent are an invasion of privacy. The placing of furniture on the applicants’ land or the deterioration of their belongings was not part of the right of access to water. The court issued orders requiring the removal of the structures incriminated by the respondent and prohibiting trespassing on the applicant’s property outside of the right-of-way.

The case demonstrates the tensions that can arise between neighboring landowners when one has access to water through the other’s land. A right of way is a valuable right and cannot be unreasonably limited by the owner of the waterfront property in violation of its wording and explicit goals. However, users of a right of way must also abide by the express terms and intent with which the right of way was granted. While compliance with provincial and municipal regulations and trespassing offenses generally fall under municipal or police law enforcement, abuse of a right-of-way can also result in court-ordered remedies and damages in favor. the owner of the land on which the ROW is located. A PDF version is available for download

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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