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When it comes to city properties, homeowners are usually very
careful about protecting their driveways, fences and boundaries. But
the same people who are so particular about property rights in the
city are frequently very casual about those rights in cottage
country. The results can often be disastrous.
In one Ontario court case last year, the property relationships
among three neighbouring cottagers were so messy that the judge was
forced to create what effectively is a condominium out of a
three-slip boathouse.
The story begins in 1962, when three families built three
identical cottages on adjacent lots they had purchased on Lake
Muskoka near Gravenhurst. Ida Finkelstein owned the west cottage,
Bella Naiberg owned the east cottage, and Bella Bojman owned the one
in the middle.
Everybody treated everyone else's land as a family compound, and
no attention was paid to boundaries. Although each family parked
cars in their own designated space, everyone had the run of all the
properties.
A walkway was constructed parallel to the shore in front of all
three cottages, and everyone used it.
Between 1968 and 1970, the three families shared in the cost of
building a three-slip boathouse with a flat roof directly in front
of the Finkelstein cottage.
Each family had the exclusive use of one slip in the boathouse,
and all three used the roof as a communal gathering place.
Maintenance costs were shared equally.
No written agreement was ever created to set out the use and
ownership of the boat-house, its location, or the rights to the
pathways across the three lots and another pathway leading to the
water. No survey was ever made to establish the location of the
boathouse and no one ever thought of the legal consequences of what
they were doing.
In fact, no one ever knew for certain where the boundaries were
located between the three lots, and there were numerous
encroachments of cottages, fences, parking areas, decks and steps.
It was a surveyor's nightmare.
Effectively,
the boathouse is
now a four-unit condominium
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In 1983, Gail Gnat purchased the Finkelstein cottage, and in 1992
Peter and Georgina Trezzi bought the Naiberg property.
Everybody continued to share the boathouse and walkways just like
the original owners did.
In 1999, Gail Gnat sold her cottage to Richard Block after
disclosing to him that the boathouse was shared. Ultimately,
disputes arose over the boathouse slips, the roof deck, walkways,
boundaries and parking areas.
The case went to trial last October. It took Justice Robert
Weekes four days to hear the evidence and sort out the mess. He
decided that the rights acquired by the parties over the years had
crystallized in law, and it could not be altered.
With the wisdom of Solomon, Justice Weekes divided the boathouse
vertically into three separate parts, allowing each family the
perpetual right to use its respective slip. He ruled that the
Trezzis and Bojmans had the right to use the walkways and docks to
access their boat slips. He also divided the boathouse horizontally,
allowing each family the continued shared use of the entire
boathouse roof deck, and access to get to it.
This case seems to be the first Ontario decision where a building
was divided into pieces, horizontal and vertical, using the doctrine
of adverse possession, or squatter's rights. Effectively, the
boathouse is now a four-unit condominium, consisting of three slips
and a common-elements roof deck.
An important lesson for cottage owners comes out of this case. It
seems common practice when buying and selling cottages to waive the
requirement for a survey because "it's only a cottage," and property
boundaries are not quite as important in cottage country as they are
in the city.
In fact, the opposite is true. If you're buying a cottage, always
get a survey — even if you don't have to. And if you're sharing a
roadway, parking, boathouse, well, dock, or deck, put the agreement
in writing. It will save a great deal of trouble and expense down
the road.
Bob Aaron is a Toronto real estate lawyer. He can be reached
by e-mail at bob@aaron.ca, or fax
(416) 364-3818. Visit
http://www.aaron.ca.
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