Access To Lake By Prescription

Questions:

1) if after using the land of Neighbour A for about 20 years to launch his boat in the lake, the property of Neighbour A gets sold. The easement was not registered and the property was in registry system. Now with new owner and property registered in land titles would Neighbour B who was using neighbor A’s property be able to use it again to launch his boat if the new owner says no and he iwouldn’t allow it?

2) Neighbour A plans to gate this access to the lake for Neighbour B who doesn’t have access any other access to lake. What do you think the legal proceedings would allow? In this case Neighbour B can access his property by land and access to water is not necessary?

Answers:

The facts are insufficient to permit any definitive answers here. Generally, there are some matters that must be considered:

  1. Assuming 20 continuous years of open and uninterrupted use, an easement obtained by prescription may have been acquired. This has to be confirmed by a Court Order. Consent or Refusal starts the 20 year clock all over again. The 20 years needs to be reached while the property is still in Registry. 19 years and 11 months would not be enough.
  2. Now that the property is in Land Titles it’s too late. Access by necessity only arises if both properties were originally owned by one person.
  3. In “real life”, your scenario is somewhat more complicated because there is a 66 foot road allowance between the lake and all properties that may be abutting. So, this needs to be taken into consideration as well.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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