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BUYING RECREATIONAL PROPERTY

Whether it be the family cottage, a ski chalet or a hunting camp, for many people in Ontario recreational property is a very important part of their lifestyle. If you are thinking of purchasing this kind of property, there are a number of issues which should be carefully considered prior to entering into this kind of transaction.

Road Access - Some recreational properties will front on public roadways, but many will be accessible only by private rights of way or by water. Even with public roadways, the municipality may only maintain the road in the summer. If it is your intent to use the cottage year round, municipal snow ploughing will be a matter you should check out carefully. Where the roadway is privately owned it is important that there be a clearly described and legally documented right-of-way to ensure uninterrupted access to your property. Where there is no deeded right-of-way and access is over roads which have been used over long periods of time, access is more risky and factors such as length of use, number of users, seasonality of use and degree of definition of the access route will affect the security of road access in the future. As a result there may be a need for expensive surveys, extensive road reconstruction and distasteful litigation to gain access to your property. If access is by water only it is important to consider the costs and inconvenience involved (although many consider this a distinct benefit). You will need to make sure that all necessary permits from the Ministry of Natural Resources and the municipality are in place to allow proper boat docking and storage at your shoreline.

Waterfront Boundaries - If you are buying waterfront property, be sure to check the property limits, particularly along the shoreline. For this purpose an up-to-date survey of the property is a critical source of information. A few properties include water lots giving buyers ownership of the lake bed under the water (but not the surface rights). More commonly ownership will go to the water's edge or to the high water mark. Frequently there will be a waterfront block over which many owners have rights of use between "waterfront" property and the water. In some municipalities there may be an unopened municipal shore allowance (a 66' strip along the water boundary) which is still in municipal ownership. It is not uncommon for cottages to have been built on this shore allowance. In some municipalities it is possible to purchase the shore allowance in front of your property. It is our recommendation that this be done where possible to guarantee for the future uninterrupted use and control of the waterfront.

Water Supply - The supply of water to recreational property may be from a municipal system, a privately owned community system, a well, or drawn directly from a lake or river. There are different types of wells - for example, drilled, dug or bored. Although a drilled well is preferable, in each case you should ensure in your agreement of purchase that there is an adequate supply, that it is potable (i.e. safe for drinking) and free of impurities and odour. Your agreement should warranty all of these things and that the pump and equipment are in good working order. You should include the right to come on the property to take water samples and have them tested prior to closing. If the property is serviced by a well which is shared with a neighbouring property owner you should check that there is a proper well agreement regulating the use and servicing of the well and related equipment.

Sewage Systems - In this era of environmental concern it is very important to check on the status of any sewage system servicing your property. If you are not on municipal sewers the property is probably serviced by a conventional septic system, an anaerobic system, or a holding tank approved by the District Health Unit or the Ministry of the Environment. Some properties still have outhouses, cesspools or leaching pits; in these cases look very carefully at the existing regulations and the requirements for upgrading these systems. Often there will be serious limitations because of lot size or topography that may limit future use or lead to very expensive future repairs.

Heating Systems - Many cottages have wood stoves or space heaters. Insurance companies may not insure your property if these systems do not meet current standards. You should require the vendor to provide proof of compliance in a form of a certificate acceptable to your insurer.

Environmental - In years past cottagers were not always appreciative of environmental damage being caused by improper garbage disposal and other actions. Fortunately this has changed dramatically, but care should be taken to look for environmental damage, particularly on older properties. The Ministry of the Environment should be consulted if you have any concerns in connection with a property you are considering buying.

Survey - An up-to-date land survey provides essential information in the purchase of recreational property. Without a current survey it is impossible to be sure about boundaries, building locations, encroachments, water boundaries, road access and easements. In most cottage areas squatter's rights do not apply and your title is dependent upon accurate and complete legal descriptions.

Severance and Setbacks - If you are buying property with a view to creating additional lots for family members or for resale, be sure to speak to municipal planning departments to determine current requirements and any expected changes to severance policies. Usually the requirements for severance in recreational areas are more stringent than in residential municipalities. If you are buying vacant land with an intent to build, check out all municipal requirements, including any building setback rules, to make sure that you can build what you intended.

Zoning - Most recreational properties will be municipally zoned as Seasonal Residential. If it is your intention to use the property now or in the future as a retirement home, you should check about the possibility and expense of having the property rezoned to allow permanent occupancy.

Co-ownership - Many recreational properties are shared with other family members or friends. It is important that there be a clear understanding between the parties about all of the issues involved in co-ownership of property including sharing of work, use and expense. It is particularly important to have a mechanism to resolve disputes and deal with disposition of property interests. It is our recommendation that this be done by way of a written agreement negotiated at the beginning when all parties are setting the goals and procedures for the common and shared interests.

The purchase of recreational property can be a vital first step towards many enjoyable vacations and weekend breaks. To avoid the problems that may turn a "slice of heaven" into a "living hell", we suggest that you carefully consider the items set out above as a preventative measure. If you are in the Midland/Penetanguishene/Georgian Bay area, Deacon Taws Law Firm is always willing to review offers to purchase with you prior to signing, so that your concerns can be addressed prior to your committing to the purchase of a particular piece of recreational property. Once you are comfortable in making that commitment, we are happy to assist you in your purchase, and to look after all of the legal aspects in connection with your transaction.

 

The foregoing articles are meant for informational purposes only and are not to be taken as legal advice. In the case of any questions, issues or needs arising from the above please contact us at Admin@deacontaws.com, Phone: (705)526-3791 or Fax: (705)526-2688

 

 

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