Lake access rights Are you ''really'' sure?
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Please note that the following article has not yet been updated since the coming into force of the new Real Estate Brokerage Act on May 1, 2010. The OACIQ positions which are conveyed in this article may have evolved since the date of its publication. It is your responsibility to ensure, at all times, that you are acting or that you are exercising your rights or recourse in accordance with the Real Estate Brokerage Act, its regulations or any other applicable law.
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It is not unusual, especially in cottage country, for a seller to claim that he has a ''right-of-way'' to the lake or ''lake access'' rights. Of course this constitutes a major plus for a potential buyer. But what is the real situation here? Here are a few thoughts to help you ask the right questions before you advertise a cottage for sale ''with'' lake access rights.
Existence of servitude
To begin with, a right-of-way or lake access right is normally described in the act of sale. We say ''normally'' because some notaries don’t always include it. So in addition to reading the act of sale, you must check the current certificate of location and get the information from the land register. Even when the servitude is indicated in the act of sale, the actual wording must be examined closely, because the presence of a servitude does not automatically mean that it is transferable to the new owners. Here is why. A servitude can be:
- PERSONAL, i.e. attached to a person who may be specifically designated in the act of sale; OR
- REAL, attached to the lot that enjoys the right (the dominant land).
In addition, it is important to call the buyer’s attention to the fact that a servitude may carry obligations or limitations, such as snow removal or foot traffic only.
Transferability and extinguishment of the servitude a) Transferability
When the immovable is sold, the personal servitude, i.e. one that is attached to a designated person, will be extinguished and the new owners will not have the benefit of the right unless a new servitude is created in the act of sale, thus requiring the consent of the owner of the land granting the servitude (the servient land). A real servitude, i.e. one that is attached to the lot, is transferred to the new owners when the immovable is sold and should normally appear in the new act of sale.
Another element to consider is prescription. For example, a right-of-way is subject to prescription after 10 years of non-use. In other words, if an owner does not use his access right for more than 10 years, the right could be challenged by the owner who granted it. Unless there is an agreement, this challenge is usually brought before a court, where the non-use of the servitude in the last 10 years will be at the heart of the debate. If the owner who granted the right is able to prove that the servitude was not used, the judge could declare the servitude extinguished. A real estate broker or agent must therefore make sure that an owner who claims he has a lake access right has indeed made use of it in the last 10 years.
As a real estate broker or agent, you cannot provide unverified information to the public or to other members. So before you advertise ''lake access rights'' or before claiming any other rights created by a servitude, you must:
- validate the existence and nature of the servitude in the act of sale and in the land register; AND
- make sure the owner has made use of his right within the last 10 years or that his right has not otherwise been extinguished (art. 1191 and 1192 CCQ).
Don’t take a chance! Claims about the existence or types of servitudes are for legal advisors to make. Don’t hesitate to ask a lawyer if you have doubts concerning the wording of the servitude. In this age of information, making thorough verifications is the added value that you provide to your clients.