Property & Road Access Disputes – Accessing Properties via Neighbouring Properties

Property and road access disputes are an unfortunate reality for many owners of cottages, camps, and farm properties throughout Ontario. These disputes often arise because the ‘roads’ used to access these properties are often primitive gravel or dirt paths that have been used for generations. As a result, it is often unclear where municipally owned roads end, and private laneways begin.

There are numerous legal principles governing municipal ‘road law,’ and private ‘right-of-way’ law. This article does not attempt to canvass all principles. Instead, it highlights two ‘laws’ that are often relevant when property and road access disputes arise.

The Road Access Act & Access Rights Over Neigbouring Private Property:

 In a previous article, we discussed Ontario’s Road Access Act. In summary, this provincial legislation provides that an owner of a privately owned ‘access road’ must obtain an Order from a Judge of the Superior Court of Justice before blocking otherwise landlocked landowners from using the ‘access road’ as their sole method of travelling to and from their landlocked property via motor vehicle.

For clarity:

(1) An ‘access road’ is defined in the Road Access Act, and does not include municipally owned or assumed lands: i.e., it only relates to privately owned lands;  

(2) Ingress and egress rights flowing from the Road Access Act are restricted to the landlocked owners in question, and only relate to ‘motor vehicle access; and

(3) The Superior Court of Justice will generally (but not necessarily) Order the closure of an ‘access road’ upon request of the owner to preserve private property rights.

‘Trespass/Forced Roads’ & Access Rights Over (Formerly) Private Property:

Unlike the Road Access Act, the ‘law of forced roads or trespass roads’ is not based in legislation. Rather, it flows from the ‘common law:’ i.e., centuries of Court decisions.

Since 2003, ‘municipal highways’ (i.e., the legal name for most public roads, save provincial highways) can only be created via municipal by-law, with the caveat that all ‘municipal highways’ existing on December 31, 2002 remain in existence unless closed by municipal by-law.

However, this was not always the case; before 2003, a ‘municipal highway’ could be created in a variety of different ways, including via the ‘law of forced roads or trespass roads.’

This type of ‘municipal highway’ could be created where the following occurred before 2003:

(1) Dedication: A private property owner ‘dedicated’ lands to the municipality by allowing the public to freely travel over same; while there is no hard and fast rule, and while there are other considerations, Courts will look to see whether the road lands in question were publicly used for forty continuous years;

and;

(2) Acceptance: The municipality ‘accepted’ the ‘dedication;’ while there are other indicia, Courts will look to see whether the municipality maintained and/or expended resources in relation to the ‘forced or trespass road’ during its use by the public.

Upon becoming a ‘forced or trespass road,’ the owners of the lands in question lost their right to prevent public passage over the portion of their property forming the ‘forced or trespass road.’ Further, even if the ‘forced or trespass road’ fell into disuse, it remains a publicly accessible ‘municipal highway’ in perpetuity despite registered ownership remaining in the name of the property owners.

If a landowner seeks to prevent passage over a ‘forced or trespass road,’ a municipality or another person may seek an Order from the Superior Court of Justice to:

(1) Confirm the existence of the ‘forced or trespass road’ as a ‘municipal highway;

(2) Vest ownership of the ‘forced or trespass road’ in the relevant municipality; and

(3) Confirm that the public at large can travel the road unimpeded in perpetuity (with the caveat that such travel can be prevented upon passage of a highway closure by-law).

If you are involved in a road access dispute, you are encouraged to contact SV Law. Our litigation lawyers have particular experience with all forms of property access disputes, including those related to road access, easements and rights-of-way, property boundaries, and others.