“Right of access to the lake”: are you really sure?

It is not uncommon, especially in resort areas, for a seller to claim to have a right of way or access to the lake. This is undoubtedly an attraction for potential buyers. But what is the reality? Here are some things to think about that will help you ask yourself the right questions before advertising a cottage for sale “with” access to the lake.

(Update of the article published on April 23, 2008)

Existence of servitude

First of all, let's say that a right of way or access to the lake is usually described in the deed of sale. We say "usually" because it may happen that some notaries have not registered it. It is therefore necessary, in addition to reading the deed of sale, to check the up-to-date location certificate and obtain the information from the land registry. Even when the easement is recorded in the deed of sale, the text itself must be analyzed rigorously. Indeed, the presence of an easement does not automatically imply that the new buyers will also be able to benefit from it. Here's why. An easement can be:

• PERSONAL; attached to a person who may be designated in the text of the deed of sale; OR

• REAL; attached to the lot benefiting from the right (dominant land).

In addition, it is important to bring to the attention of purchasers that an easement may be accompanied by obligations or limitations, such as snow removal or the possibility of traveling only on foot.

Transmissibility and extinction of the servitude

a) Transferability When the property is sold, the personal easement, i.e. the easement benefiting a designated person, will be extinguished and the new purchasers will not be able to benefit from the right of way unless a new easement is created in the deed of sale, thus requiring the consent of the owner of the lot granting the easement (servient lot). For its part, the real easement, attached to the lot, will be transferred to the new purchasers when the property is sold. It should normally appear in the new deed of sale.

b) Non-use Another element to take into account is the limitation period of the servitude. For example, a right of way is prescribed by non-use for 10 years. In other words, if an owner does not use his right of way for more than 10 years, this right could be contested by the owner who granted it. Unless there is an agreement, this contestation is generally done through the courts. The non-use of the servitude over the last 10 years will then be at the heart of the debate. If the owner who granted the right of way succeeds in demonstrating this non-use, the judge could note the extinction of the servitude. The broker or agency must therefore ensure, with the owner who claims to have a right of way to access a lake, that the latter has actually used his right over the last 10 years.

TO REMEMBER

As a broker or agency, you cannot provide the public or other members with information that is not verified. Therefore, before advertising a “lake access” or claiming any other right created by an easement, it is important to:

• to validate the existence and nature of the easement in the deed of sale and in the land register; AND

• to ensure that the owner has used his right within the last 10 years or that his right has not otherwise been extinguished (art. 1191 and 1192 CCQ).

It is therefore important to carry out rigorous checks in this regard.

However, do not venture to pronounce on the existence of an easement and its type; this is a matter for legal advice. Do not hesitate to call on a lawyer if you doubt the wording of the easement. In the information age, rigor in the verifications you carry out remains the added value to offer to your customers.

SOURCE: https://www.oaciq.com/fr/articles/droit-acces-au-lac-en-etes-vous-vraiment