Purchasing a Cottage / Access Issues and the Option of Title Insurance

by Oldham Law

Purchasing a cottage often involves difficult legal issues regarding access. A lot of cottages are not located on year-round public roads. If access to the cottage is over private lands, the first step is to determine whether there is a registered right of way from the nearest public road to the cottage. If there is a deeded right of way you should ask your lawyer to confirm that there are no restrictions on the grant of right of way. You want to make sure that you have pedestrian and vehicular ingress and egress over the right of way. Unfortunately, there are many situations where there is no deeded right of way or there is a “gap” in the rights of way that have been granted. One solution is to obtain a right of way over the private lands. However, that requires the consent of the landowner and an application to the local Planning Board for approval. This process can take months and sometimes the landowner will not agree to the granting of a right of way. What then?

Rights of access can be obtained by adverse possession or prescriptive easement. This is a complicated area of the law which will necessitate the advice of a lawyer. In a nutshell, it is possible to acquire legal rights of access through prior use, but there are various legal tests to meet and some obstacles. For instance if the land is registered in the Land Title Registry System then it is not possible to obtain rights by adverse possession. There is also the application of the Road Access Act. This Act deals with the requirements to close or restrict access over a road. There are numerous cases interpreting the application of the Road Access Act.

Most times, a title search shortly before closing of a deal reveals an access issue. An option to close the deal on time is to explain the situation to the Title Insurance Company that is already insuring the purchase. This will involve relaying all the information to your title insurer relating to access to the property. Our experience is that the vast majority of the time the Title Insurance Company will provide you with additional insurance coverage regarding access to the property. Generally, the additional insurance would pay the costs to go to court to establish that the property has legal access. The insurance is generally transferrable to the next purchaser. This additional insurance often comes at a minimal cost. It is important to discuss the terms of the additional insurance with your lawyer and the implications involved. It is also important to review and understand the terms of the policy.