Think you own your waterfront? Don’t be so shore

By Ryan O’Neill and Laura Gadsden

While the thought of the lake lapping the shore is not exactly top of mind these days, we Canadians do what we must, keeping warm in winter with reveries of cottage life, when the sun will shine again.

The question of where your property ends and Crown land begins along the shoreline is a topical issue for property owners bordering water. The growing concern surrounding climate change, including the decline of water levels and erosion of shorelines, threatens to muddy the waters even further.

So where does a waterfront property owner stand in 2019? It is commonly thought that a property abutting water extends to the natural boundary of the lake or river, while the Crown owns the foreshore, meaning the bed of land under the water. Seems pretty straight forward, right? Not exactly.

High water mark vs. Low water mark

Water levels on Ontario lakes and rivers do rise and fall with the seasons. This fact of nature is exacerbated in the Kawartha Lakes region, where the Trent-Severn Waterway plays with water levels even more. As a result, a cottage owner’s shoreline is subject to some change. There have been several cases in the courts over the years that consider whether land extends to the high water mark (the highest point the water reaches land) where surveyors have traditionally placed boundaries, or the low water mark (the lowest point that water recedes to), also referred to as the water’s edge.

Lakeside properties often sit on modest 100 foot wide shorelines, and many cottagers are naturally tempted to maximize their privacy and enjoyment. Examining original patents, along with multiple grants and surveys registered on the property, can raise conflicting information as to your shoreline boundaries.

The skinny on the law of the shoreline is largely motivated by common sense. The courts determine a boundary on water based on the facts on a case by case basis. This essentially means that if a boundary line is in dispute, there is no presumption in the Courts that your property line goes to the low water or high water mark. A property owner inclined to argue shoreline claims must be prepared to put forth evidence to support it.

The common law has given some guidance as to how they consider evidence to determine a boundary on water. Topping the list, for example, are natural boundaries, original markers, original surveys registered on the property, and barriers, all of which are given greater consideration over descriptions of property boundaries alone. So, if you are tempted, as you gaze upon an original patent from 1862, tarnished and quaintly framed on the wall of your cottage by the previous owners, to argue for 15 more feet of shoreline, you should consider what story the evidence tells, and whether it would be worth the time and cost. Prospective buyers would be well advised to order an updated survey from an Ontario land surveyor, and make the purchase conditional on being satisfied that it meets expectations. In some cases, property owners with cottages built close to the water from several decades ago, may even discover that they do not own the land their cottage is built upon. If this is the case, you may apply to the municipality to purchase the lot.

A Natural Increase or Decrease in Property along the Shoreline 

What happens if your waterfront increases as a result of a decline in water levels or a washing up of sand or soil along the beach? This is legally referred to as accretion, but it must be a gradual, slow process which occurs naturally over time. A cottage owner dumping a truckload of soil in the lakebed to increase his/her waterfront would not cut the mustard. While it is feasible to argue that accretion entitles the owner to the whole of the “new land,” recent cases have been known to divide it between private property owners and the Crown. One would have to weigh the cost of applying to have the new land registered on title, and any resulting litigation that may occur, against how much land stands to be gained. On the opposite end of the spectrum, lakeside property owners should be aware of increasing erosion of their shorelines, which threatens to reduce their property. Owners are entitled to take measures like erecting structures to control erosion, however, municipal approval and the approval of the Trent Severn Waterway would need to be obtained.

Rights of owners whose property border water 

The three levels of government in their collective management of our lakes and rivers, and/or other private property owners can have a negative impact on our property enjoyment along the waterfront. Regardless of shoreline ownership, an individual whose land borders water possesses certain rights, referred to as “riparian rights” that are useful to keep in mind. Some of these rights include the right of access, right of the natural flow and quality of water and the right to take water for personal use. A property owner whose rights have been impeded has recourse in law against any government entity or other private property owners responsible.

So, when you are sitting on the dock this summer with a coffee or cocktail in hand, watching the graceful loon run along the water, don’t be too envious that he doesn’t give a hoot where he fishes.

–This WARDS LAWYERS PC publication is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances. More information? We’re here to help –  and www.wardlegal.ca. © WARDS LAWYERS PC (2019)

6 Comments

  1. Shelley Fulton says:

    This is actually a question more than a comment. Are property taxes calculated on the actual land preceding the waterline or are the property taxes calculated on a portion of land that extends into the lake under water in addition to the land to the edge of the waterline?

  2. Brenda Cecile Turl says:

    Can a citizen legally walk across any beach in North Bay, Ontario?

  3. PHILLIP BOUCHER says:

    i had this discussion many times at a grand lake property ‘some owners say they dont actually own so far up to their land ;that anyone can lay on the beach or fish .however if u walk down to water on their property to get there u r tresspassing.if u walk lets say from princess park property along shoreline u r not tresspassing .RIP Loyd Sproul.i miss arguing about this topic .Phillip.B

  4. John McCarthy says:

    Your statements regarding a high water mark are wrong – a common misconception – case law has deemed there is no such boundary on “non-tidal waters”. Only specific allowances or reserves would override a waterfront property owners riparian right to the waters edge. Google the summary Donald Lange wrote on the case law precedents.

  5. Jim Cairns says:

    If one can legally access a lake by boat etc. through a public access point, can they then then approach ANY part of a beach or shoreline on that lake and set foot onshore legally
    for a picnic etc..etc.. without breaking any laws?

  6. Steve Johnson says:

    A property owner built a dock all along the shore line over the shore and into the lake. 50’ long. Where we all used to go as kids and fish off shore, we cannot get to. If we don’t trespass on his land , can we now sit on that dock over the water and fish?

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