Water Rights and your Waterfront Cottage Property
Toronto water rights law , the Ontario city dweller’s dream is often (not always) to own a waterfront cottage. Many seek to find the perfect waterfront cottage at all costs – sometimes paying more than the property may be worth to fend off other potential buyers. Before you buy such a property, you should make sure you have an understanding of shoreline rights or navigable water rights that restrict use of the water fronting the property. Here’s an overview of water rights issues to consider when buying your next cottage or waterfront property:
What are Riparian Rights Exactly?
Water rights or riparian rights are those which speak the right to use of the “bed of water” rather than the “ground of water” from the shoreline to a given distance into the body of water in question. This right may or may not correspond with your right of ownership of the waterfront cottage property in question and may have restrictions with respect to the way in which such waters can be used.
The right to access the water is but one right of use of the property; it’s a good idea to understand whether the right to access the water also includes the right to build, drain, use the water for personal use (percolating water right).
Typically, the Province of Ontario owns the bed of navigable bodies of water by virtue of the Beds of Navigable Waters Act, R.S.O. 1990, c. B.4. For most waterfront property owners, their land ownership ends at the shoreline or in many cases ends at the shore allowance placed between the water and the boundary of the property by the Crown. See our earlier blog post on Shore Road Allowances here). Exceptions however, happen whereby the water in questions has not be deemed to be used as a navigable water way by the Province.
Non-Navigable Waterways
A non-navigable stream, brook, or creek normally has a small flowrate and depth. These can be used as storm drain-offs or seasonal drains but can also be permanent bodies of water. Any non-navigable waterway is not for public use and as such belong to a fee simple owner. Title to such waterway may need to be given (deeded) upon purchase of the Property fronting such a waterway.
Provided the deed is granted or transferred to you upon purchase, the water from these waterways can be used for any purpose and in any municipal or provincial and applicable Federal laws. It is important to note that landowners that divert these waterways or change the course of drainage could be liable for damages to other owners’ properties negatively impacted by the drainage.
High vs. Low Water Mark
Given that riparian right refer to the “bed” of navigable water, the right to such use shifts as the water mark shifts during the course of the year – the distance as to the right is, in other words, not static. This creates an issue with respect to ownership rights if a shoreline road allowance exists since it is common that over time, the shore recedes. It is a good idea to obtain a survey before buying so that you can be made aware of whether the shore has receded such that the distance between your property and the provincial shore road allowance boundary has been eliminated. Failing to get a survey could mean you purchase a property that is sitting on Provincial land rather than on fee simply (transferable) land.
Provincial Lakes and Private Lakes
Lakes are typically owned by the Crown and can therefore be used by the public for, commercial, recreation, or travel purposes. The one exception to this is private or manmade lakes or ponds. These are lakes or ponds that are surrounded by privately owned lands. These cannot be accessed by the public without trespassing onto private property and therefore are not capable of being used by the public.
All of the above are important issues to consider when purchasing waterfront property. Ignoring riparian rights could me you buy property that is no longer located on a transferable lot or that you buy land without the right to access or build upon the shore line. It is important that you have a lawyer with experienced in dealing with waterfront properties to ensure that the house or cottage you purchase has appropriate riparian rights for your needs. At Aura LLP we frequently examine cottage properties and waterfront lots. Should you need assistance with your upcoming cottage or waterfront property closing please do not hesitate to contact us.
