What is my legal right in accessing a remote property through private land?

Question

I have an 80 acre lot in Canada. The land is 1/4 mile off a public road. A timber road was built from the public road to the property 10 years ago with permission from the MNR . Most of the timber road falls on Crown land but some of it seems to meander onto a private property. The individual who owns the private land has placed a gate across this road even though it only accesses my land and not his personal residence. For the sake of argument, assume even half of the timber road is on his property. What is my legal right as far as access to my land is concerned? I do have permission from the MNR to widen the present road or build a new road to access my property but then there would be two roads a few yard apart parallel to each other and this seems silly. I have asked the private owner for permission to have a key to the gate so I can drive up this road. They have not granted it yet because they want to "explain to me the situation with the township roads etc". I feel that there is a law about not being able to prevent someone from accessing their own property but I am not that familiar with the law. Anybody have experience with this? The property is in Northwestern Ontario in an unorganized township.
Thanks

Answer 1

Easement questions are extremely nuanced. There are several questions to be asked:



Was there ever an easement registered on title to your neighbour's property? If so, that would likely create an enduring right, provided that it was properly registered and hasn't expired.



Is the property still in registry? Or Land Titles Conversion Qualified? Or Land Titles Absolute? The Province has been converting, bit by bit, to land titles. Under Land Registry, if you used a particular access route in a particular manner, under particular circumstances, and for a particular period of time - usually ten years - then you might have established a prescriptive right-of-way by operation of the Real Property Limitations Act.



If the property has been converted to LTCQ, then you can still rely on prescriptive rights, under certain circumstances, provided that they were fully established prior to conversion. (i.e. If you make the necessary use for 9 years and 6 months, then the property converts, then you will never establish a prescriptive easement. If you made the necessary use for 10 years and 1 day before conversion, then the prescriptive easement is established and may be relied upon under LTCQ.) If the property is in LTA, then *only* registered interests in land are enforceable - an unregistered prescriptive easement would be unenforceable at that point, and you would have no rights at all if your interest isn't registered.



I would strongly suggest talking to a lawyer about this. They can do the necessary searches to determine whether or not there's a registered interest, and come to an opinion as to whether or not you may have an enforceable unregistered interest. It'll cost some money, but when the alternative is building a new road...it might be worth a shot. And one of your options will be to purchase an easement from your neighbour - see what the price is; it might be worthwhile.



(Actually, paying for your neighbour's legal fees may get some mileage, too. Many people are really paranoid about other people making use of their land, because they're vaguely familiar with the concept of "adverse possession", so they always refuse to let anyone else use it at all. Ironically, saying that the use of the property was by consent is a full defence to any claim for prescriptive rights, including adverse possession. Also, adverse possession is no longer possible under land titles, either.)

Answer 2

IF you have access to your property that doesn't REQUIRE you to cross his property, then the other owner is within his rights to deny you access to HIS property. He can only gate off property HE owns. So for example if he own half the road, he can only stop you from driving on his property, and he can only gate off that side of the road.



Now you didn't say if there was another way to get to your property a different way,even if that would mean building a road. Have you check the dead(s) to see if the Ministry of Natural Resources got a legal easement 10 yeas ago, or if another property around you has an easement to allow you access to your property. Just because there is a road convenient to you doesn't give you the right to use it. So the easement should be listed on your deed, If I remember correctly Canada has a 40 year rule on easements, that is a easement expires after 40 years, There may have been a right of way granted when the property was sold, again you need to check your paper work.. You could pay the for the connecting chunk of property, but I would first pay a lawyer to check and see what rights you really do have. It probably listed in the deed.

Answer 3

He has a right to gate it - it is his land. Unless you have an easement in your deed you will either have to build that second road or work out some type of arrangement with the owner of the other land or find some other access. If you are land locked this gets complicated and a real estate lawyer is your best bet!

Answer 4

You have no right to access his property. You have a solution, build a road on public land. Silly has nothing to do with it, he has a right to gate his property. There is no such law that prevents him from preventing you from access, and even if there was, the MNR has given you permission to build the access you need.