Who Maintains an Unopened Road Allowance Beside My Property?

Many rural and waterfront properties sit beside a strip of land that appears on the survey but has never been built into a road. You may have seen it called an unopened road allowance. It is natural to ask who looks after it, and whether the municipality could be responsible if someone is hurt or something goes wrong.

This article explains the general rules in plain language. The answer for a specific strip of land depends on its history and on local by-laws, so a lawyer or your municipal clerk can confirm the details.

What a road allowance is

Road allowances are strips originally laid out for roads by a Crown surveyor, generally 66 feet wide. A highway is owned by the municipality that has jurisdiction over it, subject to any rights reserved by the person who dedicated it.

Who has charge of the strip depends on where it is. Road allowances within municipalities fall under municipal jurisdiction, unless they have been stopped up and sold. Road allowances in unorganized territory, and all Crown shoreline reserves, fall under the Minister's jurisdiction.

The municipality's repair duty

Under section 44(1) of the Municipal Act, 2001, the municipality with jurisdiction over a highway or bridge must keep it in a state of repair that is reasonable in the circumstances, including its character and location. Under section 44(2), a municipality in default is, subject to the Negligence Act, liable for all damages a person sustains because of the default.

So the duty is real, but it applies to highways. The key question is whether your strip counts as one that the municipality has taken on.

Why an unopened allowance usually has no maintenance duty

A municipality may, by by-law, assume an unopened Crown-surveyed road allowance for public use. The section 44 repair duty is tied to the highway being assumed or established, so an unassumed, unopened allowance generally carries no municipal maintenance duty. Section 44(5) also excludes highways laid out by others before January 1, 2003, unless they were assumed or established by by-law.

Whether a particular strip was ever assumed is a records question the municipality can usually help answer. What you may do on the strip is a separate question, so confirm it before you build on it or use it.

Closing and selling a road allowance

Some owners ask the municipality to close the allowance beside them and sell it. Before passing a by-law to permanently close a highway, a municipality must give public notice of its intention to pass the by-law under section 34 of the Municipal Act, 2001. A by-law that establishes or assumes a highway can only be repealed by a section 34 closing by-law.

A municipality can convey a road allowance only after it has been stopped up. If any part is submerged, such as a shore road allowance, the municipality needs the Ministry's consent under section 43 of the Municipal Act before conveying that portion. Notice periods and procedures depend on each municipality's own notice by-law, so ask the clerk how it works locally.

Waterfront strips and buildings on allowances

Ontario notes that waterfront owners have often built cottages, residences and other structures on road allowances, which has caused problems with land transfers, mortgages, insurance claims and estates. For Crown shoreline reserves, which are ungranted Crown land no more than 30 metres deep between the water and private upland, the Ministry generally approves a sale to the adjacent owner of a developed lot unless there is a compelling reason, such as loss of access or conflict with public use like water access.

What to do next

• Check your survey or parcel records to confirm that the strip is a road allowance and not part of your lot.
• Ask the municipal clerk or public works department whether a by-law ever assumed or established the road.
• If the strip is in unorganized territory or is a Crown shoreline reserve, find out that the Minister has jurisdiction.
• Do not assume you can rely on the municipality to maintain access; confirm it before buying or building.
• If you are considering closing and buying the strip, or you have a building on it, speak to a lawyer before you list, refinance or sign anything.

Frequently asked questions