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MaxWebster
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# Posted: 11 Jun 2015 13:45
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Hi everyone, located in Ontario here.
Our place is accessed via a road that is 'deeded' access through a Farmers property.
The road is poorly maintained and used by several cottagers/cabin owners.
I am trying to get the road improved by spreading gravel and widening the road to allow two vehicles to pass each other. My plans show the road allowance at 30ft wide.
Several questions have come up and short of speaking to (and paying) my lawyer I am looking for any documentation that might provide some answers.
1. who actually owns the road: I am assuming the cottage/cabin owners "own" the road not the farmer?
2. The cottage owners are responsible for all maintenance? the farmer is not obligated to maintain the road?
3. The farmer has installed an unlocked gate on the road. is this legal? who is responsible for maintaining the gate?
does anyone have any facts or can someone point me to any government related documentation that might provide some answers?
Cheers
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bldginsp
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# Posted: 11 Jun 2015 13:59 - Edited by: bldginsp
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Can't point you to documentation, don't know Canada law, but usually an access easement works like this- the property is owned by the farmer, but the easement gives easement holders certain rights, such as the right of access and right to maintain the road. The farmer is not obligated to do anything except give you access and allow you to maintain the road in the easement. The farmer cannot lock the gate without your permission. I don't know if the law would prohibit him from installing the gate.
To what extent you can or can't do road work, specifics on the gate etc. are probably dealt with by local law. But the basics of access easements remain the same- at some point the owner of the farmers land "deeded access" to owners of certain parcels (and them only) to be able to freely pass. Once it's on the books it is a permanent part of his and your property until it gets legally changed.
What it comes to is you and the other easement owners have to maintain it, which means you all have to agree and pay up. Often that process resembles herding unneutered cats. I could tell you stories. Good luck.
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MaxWebster
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# Posted: 11 Jun 2015 14:12
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thanks, this is basically my understand based on the research I've managed to dig up.
the situation boils down to this, the farmer is making comments suggesting he isnt in favor of widening the road. Road is currently approx 15ft wide. my plans show deeded 30 ft allotment.
i'd like to get some documentation in my hands outlining the facts in black and white.
and yes, the herding of cats has already become a fact.
the road is mess, nobody is taking charge of the situation. I am trying to organize a Road Association which would make us eligible for free township funds to be used on road maintenance
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bldginsp
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# Posted: 11 Jun 2015 14:27
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I suggest that you survey to determine exactly where the easement is. You can do this yourself with a little creative measuring. You need a parcel map that clearly defines where the lines are. If you make alterations outside the easement you just handed the farmer what he needs to make trouble. I doubt he can stop you from improving and expanding within the easement. You might try talking to local law enforcement but don't be surprised if they don't want to get involved in 'neighbor disputes'. If the farmer tried to keep you out, law enforcement would probably take action, but they might consider it a civil issue. I suggest you learn all your rights, survey the easement and approach the farmer peacefully. He may not like it but if you show you intend to respect his rights perhaps he'll realize he can't do anything and accept the situation.
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MaxWebster
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# Posted: 11 Jun 2015 14:37
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No hostility at this point with the farmer, simply a little push back on his part. some of the other cottage owners think the farmer is obligated to assist with road improvements/maintenance, to which I disagree
The gate is unlocked and needed to contain his cattle. Ultimately, I'd like to see a Texas gate installed.
I want to gather all facts for the purposes of sharing with others with ownership in the road and for the farmer when we approach him with the official plan.
the road is approx 1km long, the portion that needs to be widened is maybe 200 meters.
I realize a survey might be wise,but given the small section that needs to be modified I am hoping to avoid the cost and do this ourselves as suggested
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PA_Bound
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# Posted: 11 Jun 2015 15:42
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Why don't you just widen the road in one small area along that 200m stretch, large enough to allow one car to pull over and let another pass or go by? That may appease the farmer, would be less resources/dollars to maintain, and provide the ability for cars to pass that you are looking for.
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Tucker
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# Posted: 11 Jun 2015 16:31
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Is this located in Lanark by any chance?
Please keep us posted on how this shakes out. I am dealing with a similar issue, except we cabiners Want a gate, while the easement owner is essentially absentee.
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MaxWebster
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# Posted: 11 Jun 2015 16:37
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not in Landark. I will post any relevant info.
My lawyer says he'll pull the file and call me back with specifics.
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bldginsp
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# Posted: 11 Jun 2015 19:55
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I wonder why some other cottage owners think the farmer is obligated to do improvements in an easement that doesn't serve his needs. Its basically a liability to him which he must tolerate as an attached legal condition to his property title, because of a decision he or someone else made in the past, and were probably paid for at that time. Could be the previous property owner wanted to subdivide but could only do so by providing an easement to the cottage lots. He sold the lots, made a profit, sold the farm, and left the new farm owner with an easement he didn't necessarily want. Sheer speculation but that's often what happens. Few people would buy cottage lots without legal access to the property.
I'd be interested to hear how your local law defines the rights and obligations of both parties.
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toyota_mdt_tech
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# Posted: 11 Jun 2015 20:18 - Edited by: toyota_mdt_tech
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Quoting: MaxWebster 1. who actually owns the road: I am assuming the cottage/cabin owners "own" the road not the farmer? 2. The cottage owners are responsible for all maintenance? the farmer is not obligated to maintain the road? 3. The farmer has installed an unlocked gate on the road. is this legal? who is responsible for maintaining the gate?
I am not a lawyer, but this is my take on it.
1) no, farmer owns the land the road is on, cottage owners would have use of it.
2) all lot owners that use the road are responsible for its upkeep. Not the farmer, the road is on his property but is there only to give you access to your lots. He doesnt need the road to access his home? He could use the access to enter his property I suppose. But he isnt a primary user of the road at all.
Gate, I would think its legal to install, he hasnt locked it. And if he did, I would suspect he would need to give you all keys/access. There could be a sticking issue with emergency vehicles entering if its locked. He may have it gated to protect his property from trespassers or to keep in livestock etc. The gate would need to opened and closed by anyone entering. Even if you are zipping in and right back out. Open, it, close behind you coming in and the same on your way back out.
As fro the cattle guard (I suspect this is what you call a Texas gate) that would be a big expense and the cottage lot owners would have to pay for it. It would need to be engineered to hold the weight of heavy rigs, ie certain trucks etc. And of course, any care of it down the road falls on your guys not farmer.
The land owner may have a
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hueyjazz
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# Posted: 11 Jun 2015 20:31
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Have you carefully read your deed, plot plan, abstract or any other relevant documents of the sales of these properties? Very often details of the maintenance of the road is spelled out. Generally it is the obligation of the collective property owners. However, even if spelled out without court order; good luck.
You can really stop reading here.
It's always a few and most motivated that pay and do the work. Presently I paid for and I'm putting ten tons of stone into my access road that serves others. I know one guy that will help but three others play stupid. It's in their deed to maintain the road. It's cheaper to do simple maintenance then to let it fail and then not be able to use your property.
But, to be honest, the other guy and me use the property the most and dad never raised any lazy kids. I might even buy some good will but I won't stress about it either.
Someone set up the deal with this access road to access these cabins and properties. For consideration the farmer granted a Right of Way. That is the right to these cabin and property owners an avenue to cross his property. That is really the farmer's only obligation. He was given consideration for this right.
The right is written into deeds and generally a master plot plan to sell the properties. Many times the original developer set up a owner association to handle such matters but they tend to fail unless administered. To work you need a common area maintenance agreement and collection of funds at regular intervals. Then someone to find contractors, to sign agreements with contractors and assume some liability. See why they fail?
Any utilities and rights of way for those? They to have a right to access roads. Was it the farmer that sold off these properties in the first place? Can you find the attorney that did the original deal?
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AK Seabee
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# Posted: 11 Jun 2015 22:46
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I assume Canada is like the US and that documents are recorded and stored. A quick search should reveal the plat or deed creating your lots as well as the access to those lots and the conditions of the access. Without that document we are just guessing.
Here in Alaska we can access the recorders office on the web and download the documents electronically. More than likely you can do the same.
If you can legally widen the travelled surface keep in mind all improvements must stay within the 30' easement. That will include the traveled surface, foreslope, ditch and backslope.
Good luck with Max
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Jim in NB
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# Posted: 12 Jun 2015 06:15
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Go to the deed. I am involved in two similar situations - one for the camp which the cottage subdivision developer rides herd on (there are issues here too - watch out for people reaching into your pocket without justification or outright cheating) and a second one where I have deed access to a lot on an island in the Bay of Fundy. All the responsibilities, rights and obligations for both of these are contained in deed access rights or in the case of the camp lots, convenants. Being involved in these is sure a lesson in human behaviour!
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RichInTheUSA
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# Posted: 12 Jun 2015 08:36 - Edited by: RichInTheUSA
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I have a similar situation... but recently found out that our subdivision actually does "own" the road, where we only thought we had right-of-way in the past.
The reason for the discrepancy was that the deed for the conveyance of the ownership of the road was not included in the deeds for our properties, but the portion for right-of-way was. Yes, even lawyers make mistakes (omissions). However, after an investigation by the county, they produced a deed that says that us homeowners do indeed own the road.
After investigating this with the county, they also realized that use "owners" haven't been paying taxes on the road for 25+ years.
Fortunately, the county will not be asking us to pay back taxes... however, we may have to formally create an association to pay the taxes.
We're also thinking that our newly formed association may want to get liability insurance.
Still thinking all this through... any advice is appreciated.
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old greybeard
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# Posted: 12 Jun 2015 09:33
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Both my house and cabin are on private roads with road maintenance agreements in place. Which are basically worthless as they lack teeth. I have pushed at both for the placement of liens on those who don't pay. Agreed that certain folks take advantage of the situation.
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Steve_S
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# Posted: 12 Jun 2015 10:46
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Gosh... reading this brought back nasty memories when I owned a Condo Townhouse and all the bickering, idiocy and buck passing with responsibility shirking... Yes, herding feral cats would be more pleasant.
BldgInsp & Toyota hit the points well.
An important point on the allocation. 30' is the max width which should allow provision for 2 drainage ditches on ea side, so there is 12 feet, leaving you with 18'. Then there is likely fence (farmers) which you would have to ensure is not affected by anything you do on the road... think snow clearing & pushing snow against fence etc...
This is a 'private road" and not the responsibility of province/county/township. They just hold the documents which should be readily available to you @ the local county office (check to see if things were moved / transferred during all the amalgamations). You'd be surprised how things get way laid, misplaced if your in one of the many townships that went through that.
While checking at the county, there may be covenants or agreements attached to the roadway, so best to ask.
Good Luck and hope it works out well for all of you. Being good neighbours can be made difficult even if just one dimwit causes troubles.
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MaxWebster
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# Posted: 12 Jun 2015 11:31
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Planning to visit the Registry office soon to pull and copy the surveys relate to the road. from what Ive learned they (several) are on file.
the mention of drainage ditch allowance is a good point. fencing isnt an issue as none approach the road. we`re essentially going through a forest and then a field
I`m in the process of scoping out a survey of my property, no timing yet, just getting quotes and an idea of the options. looks to be approx $2k for the full package (all documentation) including the road immediately in front of my place. $1200 for a boundaries to be marked and a report.
still waiting for a call back from the lawyer to confirm legalities and so on.
to reiterate, no issues presently, I`m just trying to get my ducks in a row before there is an issue, I want to ensure I am not out of step anywhere with respect to road improvements or maintenance. and I want to ensure the knuckleheads around me are aware of the facts & responsbilities. If I have to I will spend my own $$ to improve the piece of the road meeting my property
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soundandfurycabin
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# Posted: 12 Jun 2015 17:21
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Unless the access easement specifies otherwise, the farmer can install a gate. I think he can even lock it provided he gives keys to all of you who have legal access. The fire department will cut the lock if necessary. It would be entirely his decision as to whether the gate could be replaced by a cattle guard, at the cottage owners' expense.
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bldginsp
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# Posted: 12 Jun 2015 22:52
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Along with getting a copy of the parcel map for the property that the easement runs thru, get your own parcel map and the maps that cover all the cottages. I think each map should refer to the easement- to whom it applies. I wonder what law dictates the specifics of the gate, other improvements etc. keep us informed
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MtnDon
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# Posted: 12 Jun 2015 23:14
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Right of access issues I have seen here in NM always involve a land owner granting access along a designated right of way. The land owner retains title to that land but there is a legal record granting certain access to the other land owner who does not have direct ownership of access to a public road. The land owner granting the access could install a gate and lock it as long as keys or the combination is supplied to the other land owners being granted right of access.
Again, here in NM, I have seen a couple of these access right issues written in such a manner that specifies that all the land owners involved share the costs of maintaining the road. Those details are on record with the county property ownership and tax records.
We have one such arrangement with our mountain property neighbor.
Of course there could always be something different written into the agreement and Canadian rules ould be different from ours here down south. What I listed above is what is customary where we are. Our county insists on that sort of plain wording before they approve the division / sale of the land. The records and details are all there for public view and should therefore never be a surprise to any future new purchasers of the involved lands. However, I have also seen all sorts of fights when one person takes it upon themselves to enforce what they perceive as the "truth".
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toyota_mdt_tech
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# Posted: 13 Jun 2015 00:27 - Edited by: toyota_mdt_tech
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Quoting: RichInTheUSA Fortunately, the county will not be asking us to pay back taxes... however, we may have to formally create an association to pay the taxes. We're also thinking that our newly formed association may want to get liability insurance. Still thinking all this through... any advice is appreciated.
Where my place is at, same deal. Owners own the land, association maintains it (the roads/easements). The association carry's liability insurance. If someone was to get hurt on the road etc. This makes it tricky for anyone doing repair on roadways. If they get hurt? Insurance is a must. Our association just maintains roads, snow plows in winter for access and takes care of ditches, grading, gravel, weedspraying etc.
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MaxWebster
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# Posted: 15 Jun 2015 20:20
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Quoting: toyota_mdt_tech Where my place is at, same deal. Owners own the land, association maintains it (the roads/easements). The association carry's liability insurance. If someone was to get hurt on the road etc. This makes it tricky for anyone doing repair on roadways. If they get hurt? Insurance is a must. Our association just maintains roads, snow plows in winter for access and takes care of ditches, grading, gravel, weedspraying etc.
I never gave much thought to the insurance angle. I assumed that because the road is not a township road the land owner had to carry insurance applicable to the road . Cant recall anyone here (cabin/cottage owners) in Ontario ever having such liability insurance. or maybe my property insur covers this.
Its worth confirming on my end
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Littlecooner
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# Posted: 17 Jun 2015 09:19
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Some additional thoughts - If you hire a surveyor to do your boundary, etc., then furnish a copy of all your research on the road and ask for his opinion of your questions. Some laws are "local" in nature and we can all provide generic answers but he is the expert on location, and title and would have a great understanding of ingress and egress easement, more so that a lot of practicing attorneys.
If you keep all construction activities within the 30' easement, the farmer/landowner can not prevent the widening, but his "cooperation" would help in future usage. Old saying in my part of the world is to go talk to someone "with hat in hand". That's a throwback from many decades ago when everyone wore a hat and if you wanted the "blessing" or cooperation of someone, you went to them, and removed you hat in respect, and said "please" in asking for their blessing. An actually sit down with the farmer, with all your research in hand and a nice voice of asking for his blessing of widening the 200 meter area could be the best thing you could ever do in this quest.
I also second your attempt at organizing a "access road association" for all those using the road. I could write a book if I had kept all the horror stories I have experience in this area. You will have cabin owners who will turn a cold shoulder to your efforts and then laugh at you when the rest of your group improves the roadway for all to use.
Good luck, its just a problem you must deal with for your specific location.
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RichInTheUSA
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# Posted: 17 Jun 2015 09:36
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I did find out additional data on the tax situation of owning a common road.
Right now, it appears that 8 lot owners collectively own 1/8 of a common road proportionally (some folks own more than one lot).
Anyhow, *in Virginia* if a HOA owns common property, then they are not assessed taxes. However if individuals do, then taxes will be assessed.
One approach to owning a common road would be to create an association, and have the lot owners give their 1/Nth interest to the association.
As for insurance... not sure if my home owners policy covers liability for a proportional interest in a road (in addition to the actual lot I own).
We're furthering our investigation and considering our options. Rich
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MaxWebster
Member
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# Posted: 18 Jun 2015 10:40
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Quoting: Littlecooner Some additional thoughts - If you hire a surveyor to do your boundary, etc., then furnish a copy of all your research on the road and ask for his opinion of your questions. Some laws are "local" in nature and we can all provide generic answers but he is the expert on location, and title and would have a great understanding of ingress and egress easement, more so that a lot of practicing attorneys. If you keep all construction activities within the 30' easement, the farmer/landowner can not prevent the widening, but his "cooperation" would help in future usage. Old saying in my part of the world is to go talk to someone "with hat in hand". That's a throwback from many decades ago when everyone wore a hat and if you wanted the "blessing" or cooperation of someone, you went to them, and removed you hat in respect, and said "please" in asking for their blessing. An actually sit down with the farmer, with all your research in hand and a nice voice of asking for his blessing of widening the 200 meter area could be the best thing you could ever do in this quest. I also second your attempt at organizing a "access road association" for all those using the road. I could write a book if I had kept all the horror stories I have experience in this area. You will have cabin owners who will turn a cold shoulder to your efforts and then laugh at you when the rest of your group improves the roadway for all to use. Good luck, its just a problem you must deal with for your specific location.
i`m on the same page here: gathering facts and I will approach the farmer with the intent to discuss and position the work to his benefit (at no cost to him) since he uses the road as well. I suspect he has no interest in widening the road nearest his home which is understandable and ok. I am hoping the hat-in-hand approach works. if not we go to plan B.
Pricing on Surveying work if anyone is interested :
1, basic: boundary survey only (of my lot only), no report - approx $800-$1000
2. boundary survey (lot only) plus a surveyors report (inclds drawing illustrating all buildings) $1200-$1500
3. Full package inclds Reference Plan and survey of approx 500ft of rd that isnt surveyed - $1700-$2500
Still waiting on the call from my Lawyer re: legal specifics.
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bldginsp
Member
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# Posted: 18 Jun 2015 14:41
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Too bad you have to go to these lengths to deal with what is essentially a simple situation. It's all about CYB- cover your butt
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MaxWebster
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# Posted: 18 Jun 2015 20:34
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talked with my Lawyer today.
The original deed from 1961 to my land had the details on the access rights, my deed simple indicated to refer to the 61 deed for specifics.
- I have deeded Right of Way access from my lot to the municipal road
- deed indicates gates must be kept closed.
lawyer says farmer can lock the gates but must provide a key
- Gates are his responsibility
- Farmer owns the road and the land the road is on. We own the right to access our land via the road
- maintenance is not spelled out in the deed, therefor maintenance by him would be voluntary as it would be with any other 'private' road on his land and its up to us to maintain the road if we wish.
lawyer had the old 1961 deed in his office, just never included it in the package I received when I bought the place, he emailed me a copy.
All at no charge
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toyota_mdt_tech
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# Posted: 18 Jun 2015 20:54
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Well good deal. Now to herd those cats as mentioned in here (great analogy too I might add) and coordinate the repair cost between all members for the road repairs. Good luck!
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bldginsp
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# Posted: 18 Jun 2015 21:44
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The original analogy, Toyota, was of herding unneutered cats. It's one thing to herd them when spayed and neutered, it's another when they are more wild. Road associations in rural areas always more closely resemble the latter. It's a natural fact.
MaxWebster- sounds to me like you are now armed with the obvious, really you are back to square one, dealing with a farmer who knows there is an easement but doesn't like it and doesn't want you to fix it. Be interesting to see how he reacts. Probably a function of your level of diplomacy. Is the farmer against widening the road or just against paying for it himself?
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